Nationality and Borders Bill

Lord Pannick Excerpts

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

[Lord Pannick (CB)]

My Lords, I shared the concerns expressed by my noble friend Lady D’Souza about Clause 9 as it was originally drafted. However, I am very satisfied with the amendments tabled by my noble friend Lord Anderson, particularly as the exercise of these powers is subject to the control of the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Bennett, that this is not to have trust and faith in the Home Office. Whether or not that is justified, I have trust and faith in the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Warsi, that this is not a compromise or papering over the cracks. Rather, this is a great tribute to the noble Lord, Lord Anderson, and to the work done by the Minister: it is to achieve the protection of both the public interest and the rights of individuals. This is what this House should be aiming to do.

[Lord Mackay of Clashfern (Con)]

My Lords, I had the honour, with the then Leader of the House, to present to this House the 1981 Bill which became the Act. We certainly understood that it was a very drastic power which enabled citizenship to be taken away. Therefore, it was only right that notice should be required, and provided for, in Section 40(5) of that Act. It included the need to make clear to the person affected that the application was on. It used the last known address as a possibility. However, the more that difficulties arise, the more it is seen that something further is required. Therefore, it is right that Section 40(5) should be amended. I think that the amendments, as now proposed—and subject to the amendments of the noble Lord, Lord Anderson of Ipswich, if, as I hope, the Government will accept them—are an acceptable way of dealing with this very delicate matter.

I agree entirely with what the noble Lord, Lord Pannick, said, that the real and ultimate protection is in the independent judicial review by the special court for that purpose. It is essential that, as this nation is subject to many different ways of being attacked, we should be protected as much as possible. This is a very sensible way to do it, provided that the Government are prepared to accept the proposal of the noble Lord, Lord Anderson of Ipswich.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, from these Benches, I told the noble and learned Lord that we will be supporting him. He said that that was the right answer.

[Lord Pannick (CB)]

My Lords, I signed this amendment for all the reasons that were given by the noble and learned Lord and because it is of vital importance, especially at this time, that the legislature makes it clear that it intends and requires that the Government comply with their international obligations.

[Baroness Jones of Moulsecoomb (GP)]

The Greens support the amendment too.

Nationality and Borders Bill

Lord Pannick Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

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

My Lords, I rise to support Motion B1. “Nothing matters very much, and very little matters at all.” So said Lord Balfour of Balfour Declaration fame a century ago. But Lord Balfour was not then faced, as your Lordships now are, with a Bill which most—if not all—disinterested lawyers recognise that, first, without the amendment now proposed, would breach international law under the convention and, secondly, at the same time would nevertheless make unchallengeable the question of this legislation’s legality. Noble Lords should note that if the Bill passes without this provision, the legality of these provisions cannot even be raised before a court of law.

That will be the position unless we have the guts or—let me rephrase that—unless we are sufficiently alive to what surely is our constitutional duty as a revising Chamber to insist on the amendment to pass Motion B1. So, pace Lord Balfour, this really does matter very much.

I hope noble Lords will allow me another few words. I read again yesterday the disheartening, positively dispiriting House of Commons debate last week, which summarily rejected our amendments from the last round of ping-pong. The amendment originally in the names of the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, was dealt with even more dismissively and cursorily than the first time round. This time, there was no pretence that the courts could decide whether or not this new Bill will be convention-compliant. Previously, the Commons had been—as I accepted last time round—entirely inadvertently misled into thinking that the courts would have a say on it.

It is acknowledged on all sides that the Bill as it stands would overturn a quarter of a century of established English law as to the proper meaning of the convention. Of course, that is also the view of the UNHCR, which advises that we would be breaking international law by passing this legislation without such an amendment as now proposed. Therefore, it is now recognised that if the amendment fails to pass, the Bill will—the words can be used—foreclose or pre-empt the question as to the legality of these clauses. The clauses, in effect, would therefore operate as ouster clauses.

All the Minister in the other place said last week was:

“The Bill—I insist on this in the strongest terms—is compatible with all of our obligations under international law. Our position has not changed and we do not consider it necessary to put this on the face of this Bill.”—[Official Report, Commons, 20/4/22; col. 239.]


In other words, the Bill that we are now asked to approve without the amendment is simply proclaimed by the Government to be compliant. We are asked to accept the mere self-serving say-so—the assertion—that it is compliant, although, as I have said, it is unsupported, so far as I am aware, by any respected body of opinion charged to look into these things: the Joint Committee on Human Rights, the Bingham Centre, et cetera, and including, as I said, the UNHCR, which is charged specifically under the convention with the superintendence of the proper interpretation and application of the convention.

That is enough. I am sorry if this imperils our hopes of Prorogation this week, but I urge your Lordships to summon up the blood, stiffen the sinews—not, I think, Lord Balfour in that instance—and to continue to reject and challenge this further melancholy attempt to usurp our law.

[Lord Pannick (CB)]

My Lords, I too speak in favour of Motion B1, in the name of the noble Baroness, Lady Chakrabarti. I declare my interest as a practising barrister who sometimes acts in immigration cases.

As the noble and learned Lord has said, the overwhelming view of lawyers and interested, informed persons is that the provisions of the Bill breach this country’s obligations under the convention on refugees, which this country has signed. Ministers have repeatedly asserted to the contrary that they have failed to respond in any way to the reasoning of the critics.

Nationality and Borders Bill

Lord Pannick Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

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

My Lords, I rise, I hope for the last time—a hope which will be shared by every Member of this House—to support this amendment. There are not many issues that it is worth going to the stake for, but surely the rule of law is one. I have spent 60 years of my life on it and do not propose to stop here. I suggest that your Lordships support this too.

This Motion as now put fully respects the sovereignty of Parliament, just as the Human Rights Act does. It is the one simple provision that is needed to ensure that questions about the legality of this Bill can be brought before our courts and decided by an independent judge, and it is surely the least contentious way of achieving that. Indeed, it is beyond logical objection. In truth, the only objection raised is that it is unnecessary —surely the weakest objection that one can ever produce. If we never passed a provision which was unnecessary, the statute book would be a good deal lighter and the better for it. But here, it is needed, unless Parliament—your Lordships’ House and the other place—is happy to oust the courts’ jurisdiction in the whole area of what constitutes a right to refugee status, to asylum sanctuary.

It did not appear seemly yesterday to intervene during the short contribution of—if he will allow me to call him this—my noble and learned friend Lord Mackay of Clashfern. My reverence for him is boundless, not least because 30 years ago he had the sagacity to promote me to the Court of Appeal. However, he surely cannot maintain that, because the Attorney-General advises, as she may well have done, that this Bill is refugee convention compliant, that is that and we should just buy into it without thought: that this would be a sufficient basis for putting the whole Bill beyond the purview of the courts. Think about Miller 2; think about the prorogation order. We were told very plainly, and none of us doubts, that Geoffrey Cox, QC and then Attorney-General, had said that this is perfectly lawful. But that did not put it beyond the courts. If ever there was a case for not putting compliance with international law beyond the courts, this surely must be it.

I will make three short points on the speech of the noble Lord, Lord Horam, yesterday, which attracted a rather ungenerous rebuke, although that is by the way. His first point was the general one that this is merely “an enabling Bill” giving the Government “power to do something”. That is surely not so in respect of the important group of clauses we are considering here, which, under the heading “Interpretation of Refugee Convention”, redefine it. Without our amendment, the courts would have no alternative but to apply those provisions, whether or not they are regarded as compatible with the convention. There is nothing by way of this being merely an enabling Bill; it is a declaratory Bill beyond question.

Secondly, the noble Lord, Lord Horam, reminded us of the five-page letter circulated by the then excellent Minister, whose ears must be burning already from the previous debate, and quite rightly, because his loss is a terrible one for us all. The letter set out the Government’s legal arguments for contending that these definition provisions can be viewed as convention-compliant. I have the greatest regard for the noble Lord, Lord Wolfson, and certainly there is not a soul at the Bar who could have made more persuasive arguments to that effect. But they are just that: arguments. They should not therefore, of themselves, necessarily win your Lordships’ support. Included among those arguments were many that had been roundly rejected in the course of this country building up a quarter of a century’s worth of plain, authoritative jurisprudence that decided the questions of what the refugee convention required, which the noble Lord, Lord Wolfson, acknowledged are now being overturned by the Bill.

Thirdly and finally, the noble Lord, Lord Horam, at col. 157 of yesterday’s Hansard, said that he fully agreed with the noble Lord, Lord Pannick, and myself,

“about the 2001 refugee convention”.

He called it the 2001 convention; obviously there is the 1951 convention. He continued:

“I do not want this Government to step outside that in any way. It would be a tragedy if that happened. It should not be allowed to happen; I believe that it will not happen.”—[Official Report, 26/4/22; col. 157.]


But surely he must accept that there needs to be scope, therefore, for somebody to look at it independently once the statute is enacted.

Finally, if we look at the front cover of this Bill, we will see a statement, required by the Human Rights Act, by the Minister—the noble Baroness, Lady Williams —which says, under the heading of the European Convention on Human Rights, that it is her view that

“the provisions of the Nationality and Borders Bill are compatible with the Convention rights”.

She may well indeed have been so advised by the Attorney-General, but surely nobody has ever doubted that that means that it is enough in itself; it is not. What the Act says is that you should try to construe it compatibly and if you cannot you declare it—precisely the mirror image of what is now proposed for this self- same legislation.

I urge your Lordships—not at this stage because it is so late in the day and the ping-pong ball has been returned two or three times already—to consider whether we really should quit on the constitutional issue on this vital rule-of-law question. At this stage, I urge the noble Baroness to divide the House on the issue and let it be supported by all those who want this country to abide by the rule of law.

[Lord Pannick (CB)]

My Lords, I support what was said by the noble and learned Lord. When this matter went back to the House of Commons last night, the Minister there said that the amendment from the noble Baroness, Lady Chakrabarti, was “unnecessary, inappropriate and unconstitutional”. What the Minister failed to recognise, with great respect, is that whether there has been compliance with the refugee convention has been a matter for the courts of this jurisdiction for at least the last 40 years.