Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

Moved by

[Baroness Chakrabarti]

At end insert “and do propose Amendment 5F in lieu—

5F: Insert the following new Clause—
“Interpretation of Part 2
(1) So far as it is possible to do so, the provisions of this Part must be read and given effect in a way which is compatible with the Refugee Convention.
(2) If a court or tribunal determining a question which has arisen in connection with the provisions of this Part cannot read and give effect to those provisions in a way which is compatible with the Refugee Convention, it must make a declaration to that effect.
(3) Where a court or tribunal is considering whether to make a declaration of incompatibility, the Secretary of State is entitled to notice in accordance with rules of the court or tribunal.
(4) In any case to which subsection (3) applies the Secretary of State is entitled, on giving notice in accordance with rules of the court or tribunal, to be joined as a party to the proceedings.
(5) Notice under subsection (4) may be given at any time during the proceedings.””

[Baroness Chakrabarti (Lab)]

My Lords, once more I thank noble Lords for caring about the refugee convention, and I thank the Minister for the courtesy of each and every one of our exchanges over many months.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I made the point yesterday about the time we have spent on this; I do not think your Lordships have ever felt that we in any way have tried to rush this or any other legislation. We have gone many days in Committee, for 12 hours or more, discussing at length all the concerns and issues at hand. Many of the points have been remade today in a very articulate way.

I think my noble and learned friend Lord Mackay feels that he has been slightly misrepresented by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I wonder if he might check Hansard and come back to my noble and learned friend.

In response to the concern of the noble Baroness, Lady Chakrabarti, this has been clearly set out, as I have said before. These provisions are clear and unambiguous and a good faith interpretation of the refugee convention. The courts of course have an important role in ensuring that legislation is applied correctly, but it is for Parliament to make that legislation. That is the rule of law and is the result of our dualist system.

Turning to the noble Lord, Lord Pannick, we maintain that the general rule of interpretation in Article 31(1) of the Vienna convention requires a treaty to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. On that basis, as the noble Lord, Lord Pannick has quoted, we have taken a wide-reaching exercise to understand this and considered relevant factors, such as the law in other jurisdictions, case law and the words of academics. We believe that all provisions reflect a good faith, compatible interpretation of the refugee convention.

With those words, and echoing the words of the noble Lord, Lord Coaker, I think that it is time to pass this Bill.

[Baroness Chakrabarti (Lab)]

I thank all noble Lords once more. It is often a huge privilege to hear debates from all sides in this Chamber, but sometimes that privilege comes with an awesome burden, as the Minister knows all too well. I am referring not just to this Chamber but to noble Lords in other places in this building where they beaver away at their work.

I have had the privilege in recent months to serve on the new and important Justice and Home Affairs Committee, chaired by the noble Baroness, Lady Hamwee, which had the privilege of hearing not so long ago from the Home Secretary. While I will repeat my admiration for the Minister and the way in which we can disagree well, this is not the case with everyone.

I want to say a word about good faith, which has been cited a few times. Before that committee, the Home Secretary gave evidence about the pushback policy. The committee has members far more august than me, including my noble friend Lord Blunkett, who quizzed the Home Secretary about the legal basis for pushing back boats in the channel and the controversy that had raged. She assured us that there was a legal basis and that the purpose of the policy was to deter refugees and the evil trade. The purpose was to deter asylum seekers and we were assured that there was a legal basis, as was Parliament and the public. When that policy was judicially reviewed, the Home Office sought public interest immunity over provisions in the policy document that revealed that the Home Office knew that it would be contrary to the refugee convention to ever repel a boat with a person who said, “I need asylum. I am a refugee”. It was only because the courts were able to say no to the public interest immunity that the Government and the Home Secretary were exposed and that policy is now over. That is how important the rule of law is.

I have been torn in making my mind up about this Division right now. I have been so grateful for the support of my noble friends—my noble friend Lord Coaker in particular— but when the noble and learned Lord, Lord Brown of Eaton-under-Heywood says he will go to the stake for the rule of law, I will go with him. I have moved the Motion and would like your Lordships’ House to agree it.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

Motion B1 (as an amendment to Motion B)

[Baroness Chakrabarti]

Moved by

At end insert “but do propose Amendment 5D in lieu—

5D: Insert the following new Clause—“Interpretation of Part 2(1) So far as it is possible to do so, the provisions of this Part must be read and given effect in a way which is compatible with the Refugee Convention.(2) If a court or tribunal determining a question which has arisen in connection with the provisions of this Part cannot read and give effect to those provisions in a way which is compatible with the Refugee Convention, it must make a declaration to that effect.””

[Baroness Chakrabarti (Lab)]

My Lords, in moving Motion B1 as an amendment to Motion B, I also support other amendments.

Extra-parliamentary events since your Lordships’ last consideration make anxious scrutiny today even more important. I refer of course to atrocities in Ukraine and the Maundy Thursday MoU with Rwanda, but also to the unsuccessful Home Office attempts to assert public interest immunity, or secrecy, in the High Court over parts of the subsequently withdrawn little boats push-back policy. Contrary to everything both Houses, voters and desperate refugees were led to believe, the Government always knew that there was no legal basis for repelling a boat containing souls declaring a wish to claim asylum.

The importance of such matters being justiciable in court is therefore clear. From her answers to yesterday’s PNQ, I am glad to say that I do not think the Minister disagrees with that. Nor, to his credit, did the Minister in the other place present any policy difference on that point. He repeatedly asserted ongoing intentions to comply with international law, and specifically to comply with the refugee convention and ECHR together.

I have listened—and indeed pre-empted the constitutional concerns that the Minister just set out—and redrafted to make the refugee convention protection in the Bill no more, but no less, than that already provided for in law by the ECHR, thus making the new Amendment 5D even more respectful of the primacy of the other place and reasonable than its predecessor amendments. I beg to move.

[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.

--- Later in debate ---

I note that the other place has expressed what the British people want with substantial majorities against these provisions. Again going back to the leader of the Opposition, on Sunday, he shared our view that the best place for an asylum claim to be made is in the country nearest to where they are fleeing from. I encourage noble Lords to hear the will of the British people, the elected House and the leaders of both parties, in recognising the need to discourage people from making dangerous journeys.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords without exception, and especially to the Minister for her characteristic calm and courtesy, if not for the content of some of her message. She had one substantive argument against Motion B1, which was her constitutional objection that, somehow, the courts would trump the will of Parliament if we put the Government’s commitment to this legislation honouring the refugee convention on the face of the Bill.

With all due respect, not least to the noble Baroness and her hard-working advisers, if there was anything in that argument, it would have been better addressed to the previous iterations of my amendment. This time, the amendment on the Marshalled List says that this legislation

“must be read and given effect”,

subject to the refugee convention,

“So far as it is possible to do so”.

If a provision of this Bill is found to be so clearly incompatible with the refugee convention, the court or tribunal would have to respect the will of Parliament and simply make a declaration to that effect. With respect, I think that constitutional balance point has been pre-empted by the new draft of this amendment. That is what we do for the ECHR. The sentiment of the short remarks of the Minister in the other place seem to be that we honour both the ECHR and the refugee convention. It seems illogical, in legislation that is for refugees, not to put those two matters on the same statutory footing.

Further, in her earlier remarks, the noble Baroness said that rules that are made under the 1993 legislation cannot be made in a way that is incompatible with the refugee convention. So rules under the 1993 Act would be subject to refugee convention protection, but acts of discretion by individual prosecutors, immigration officers or the Home Secretary under this legislation would not be subject to the same protection. I thank the noble Lord, Lord Horam, for his significant assistance with that argument, because he referred to this as “enabling” legislation. Whether noble Lords agree with that particular adjective, he is right that there are many discretions in this part. My modest amendment would ensure that these discretions, where possible, would have to be exercised in a way that is compatible with the refugee convention. If it is not possible to do so, the language cannot be interpreted out of existence by the courts under the new draft. I am grateful to the noble Lord, Lord Horam, for that.

Finally, refugees and asylum seekers did not feature significantly in the Conservative manifesto of 2019, but it said this:

“We will continue to grant asylum and support to refugees fleeing persecution, with the ultimate aim of helping them to return home if it is safe to do so.”


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


That was the manifesto commitment.

In a jurisdiction that has no entrenched Bill of Rights or written constitution, no Supreme Court or constitutional court with strike-down powers, this place, your Lordships’ House, has a significant role to play when fundamental and constitutional rights are at stake, and where there is no conflict with the Government’s manifesto commitments or their repeated and expressly stated policy. Motion B1 honours all of that: the manifesto promise and the policy stated expressly and repeatedly by Ministers in both Houses of Parliament. I ask noble Lords to agree it.

UK-Rwanda Asylum Partnership Arrangement

Baroness Chakrabarti Excerpts

Monday 25th April 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I am just going on what has been the convention over many years. Usually, the CRaG Act process that the noble Baroness, Lady Hayter, talked about is for treaties.

[Baroness Chakrabarti (Lab)]

My Lords, first, why an MoU and not a treaty? I did not hear the answer to that. Secondly, why do the Government seek public interest immunity to protect the secrecy of the pushbacks policy and the fact that the policy could never have been used against asylum seekers? Finally, we hear from parts of the press that the Home Secretary thinks that criticism of the Rwandan deal is xenophobic. Therefore, can the Minister comment on the US State Department’s report on Rwanda of just last year? It reported significant human rights issues, including credible reports of unlawful or arbitrary killings by the Government, forced disappearance by the Government, torture or cruel, inhuman or degrading treatment or punishment by the Government, and 10 other violations of that magnitude.

[Baroness Williams of Trafford (Con)]

My Lords, I acknowledge the US country report last year on Rwanda. Our own country policy and information team carried out an assessment on safety in Rwanda before we entered an agreement. That report is expected to be completed in the near future. I cannot remember the other questions that the noble Baroness asked because it was quite a long question.

Town and Country Planning (Napier Barracks) Special Development Order 2021

Baroness Chakrabarti Excerpts

Thursday 7th April 2022 Lords Chamber

In 2016, Louise Casey, now the noble Baroness, Lady Casey of Blackstock, in her report on social integration called for more to be done to bridge divides between people in order to bind communities together. The continued use of Napier barracks as set out in this statutory instrument will have the opposite effect: a detrimental effect on residents both within and around the barracks and on social integration generally. This House should regret it, and I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I thank the noble Lord, Lord Paddick, for bringing this Motion. It is regrettable that the poor Minister is here yet again—clearly, someone thinks she has not worked hard enough this term—but I thank both her and the noble Lord for making this possible. It is a source of huge regret that we are still in this place with Napier barracks and the asylum detention estate more generally, which is too large and overcrowded because we detain too many asylum seekers. If we can learn something from recent weeks and months and from the public response to the Ukraine crisis—the way people in our country have been prepared to open their hearts and homes to refugees and asylum seekers from Ukraine—we might extrapolate from that a broader policy change in relation to all refugees and asylum seekers, regardless of the conflict and the continent from which they are escaping.

I refer noble Lords to the very recent annual global Amnesty International Report, which your Lordships will know covers the entire world and cites profound human rights concerns from Amnesty. In the section on the United Kingdom, the accommodation of asylum seekers in former military accommodation is cited as “inhumane conditions”. That is what Amnesty International says about the United Kingdom. That must be a source of embarrassment and shame, not just to those of us in your Lordships’ House but to most people in the United Kingdom, were it brought to their attention.

I just hope that, in her reply, the Minister might look to future planning. We are where we are for the moment with Napier barracks, and this is highly regrettable given the High Court judgment and all the reports which the noble Lord, Lord Paddick, pointed out. Can the Minister give us a glimmer of hope for a vision of what asylum accommodation might look like in the months and years ahead? Is there some inspiration to be drawn from this Ukraine response?

I visited Yarl’s Wood detention centre a few years ago, which is supposedly nothing as bad as Napier barracks, and I found that to be a wholly traumatic visit. It took about a year to be granted permission, even as a Member of your Lordships’ House, to attend Yarl’s Wood detention centre, with the former shadow Home Secretary Diane Abbott MP. What I saw there, in the treatment of these human beings in both the medical facility and the general accommodation, has not left me. I really think that we can do better nearly a quarter of the way into the 21st century. I look forward to hearing from the Minister.

[Baroness Wheatcroft (CB)]

My Lords, I thank the noble Lord, Lord Paddick, for raising this issue again and, as others have, I pay tribute to the Minister for the hard work she has done throughout this Session and hope that she has a very good Recess.

I speak on this issue because I regularly drive past Napier barracks and, even though there have been improvements—which the right reverend Prelate the Bishop of Durham acknowledged—it is still an extraordinarily sorry sight. For anyone to be incarcerated there for more than a few days must be deeply depressing. Clearly, 12 to 14 people in a dormitory is better than the 26 who were originally there, but it is by no means perfect. The sooner we can get people out of Napier barracks, the better.

I have one specific question for the Minister about the people who are not at Napier barracks but are housed at nearby hotels: the youngsters and adolescent boys. At the height of the summer, those youngsters were in the hotel with windows closed and guards outside ensuring that no one came or left the premises. Can the Minister assure us that innocent children are no longer housed in accommodation such as that hotel with no means of getting fresh air, and that this will never be allowed to happen again in this country?

Live Facial Recognition: Police Guidance

Baroness Chakrabarti Excerpts

Monday 4th April 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

I disagree with everything that the noble Lord has said. I think every police force in the country uses retrospective facial recognition. Watch-lists are deleted upon use at a deployment, so there is no issue regarding ongoing data protection. Importantly, just as CCTV and retrospective recognition are still used to detect criminals, missing persons and vulnerable people, so is the application of LFR.

[Baroness Chakrabarti (Lab)]

My Lords, I refer the House to my membership of the Justice and Home Affairs Committee, whose pertinent report of last week has been referred to. Given the intrusive nature and racially discriminatory potential of this technology, why does the Minister not agree that legislation would be preferable to the police writing their own guidance, which some of us find, in this case, to be permissive and wholly unsatisfactory?

[Baroness Williams of Trafford (Con)]

There already is a legal framework. In terms of bias, I quote from the US National Institute of Standards and Technology. It found that NEC, which is the technology that the police use, provided

“algorithms for which false positive differentials are undetectable”

and that the algorithm

“is on many measures, the most accurate we have evaluated”.

It is for the police, within the legal framework, to decide how and in what situation to deploy this technology.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

Moved by

[Baroness Chakrabarti]

At end insert “and do propose Amendment 5B in lieu—

5B: Insert the following new Clause—
“Interpretation of Part 2
For the avoidance of doubt, the provisions of this Part are compliant with the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, and must be read and given effect as such.””

[Baroness Chakrabarti (Lab)]

My Lords, while supporting a number of other Motions in this group, I beg to move Motion C1. The refugee convention is both a memorial to Hitler’s victims and an essential component of the post-1945 rules-based order. It offers protection as of right, not dependent on executive largesse to pick and choose which refugees should be saved and which continent or conflict these should be escaping from.

Renowned jurists in your Lordships’ House and beyond say that the Bill violates the convention; Ministers disagree. Our intention is to resolve the argument with a modest but vital insurance policy, ensuring, for the avoidance of doubt, that our courts will resolve disputes of interpretation and action compatibly with the convention.

As a public and constitutional lawyer, I take the primacy of the other place very seriously. This is neither a money nor a manifesto matter. Indeed, it gives effect to the Government’s emphatic policy of refugee convention compliance in times when this could not be more important. No reasonable Government should object. If your Lordships’ House were not to insist on its inclusion in the legislation, we would fail in our duty to protect the international rule of law.

[Lord Judge (CB)]

My Lords, I support the noble Baroness, Lady Chakrabarti. It is perfectly obvious that the Commons reasons tell us that it agrees that the legislation should be compliant with our international obligations. The Minister has just told us that everything that we do will be compliant with them. I regret that a number of us take the view that these provisions do not so comply. The decision will ultimately be made by a court. If the Commons is right, that is well and good—fine, there would be nothing to argue about—but, if we are right and the view of the Commons is wrong, the judge would be bound by this legislation to disapply the convention and the protocol. No one would be able to say, “Ah, but the Commons reasons say that it is compliant”. The Commons reasons will not be in the legislation.

It is very simple: we respectfully suggest that the Commons should be asked to think again and reflect on the consequences if the advice that it is receiving is wrong and the advice that we are suggesting is right, and to avoid the problem that its own expressed legislative intention—that the legislation should be compliant—will prove to be wrong. It is very simple—all doubt can be avoided by this amendment.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, the noble Lord, Lord Rosser, might think the House does not want to hear from him, but it certainly does not want to hear from me either. It never likes what I have to say.

There have been a few disparaging comments about our approach to Ukraine. I have just looked on Twitter, and this is the first comment from President Zelensky:

“The United Kingdom is our powerful ally.”


It must be acknowledged that we have done much to assist Ukraine over the years. We have now issued over 20,000 visas and done some other fundamental things for our friends in Ukraine. We have been training 22,000 troops for years; we have given them 2,000 NLAWs, or, as President Zelensky calls them, “in-loves”—apparently, on their launch, people in Ukraine shout “God save the Queen”. We have also provided them with the Starstreak missile. We have been terribly generous and supportive to Ukraine and will go on being so.

My noble friend Lord Horam said there had been no pre-legislative scrutiny; it may seem a long time ago but, I guess by way of a White Paper, the New Plan for Immigration was published—I know we do not do Green Papers these days; that stopped years ago.

Motions C and D deal with the refugee convention and our policy of differentiation. We have been clear throughout the development of this policy that it fully complies with all our international obligations, including the refugee convention. I will not go over my noble friend Lord Wolfson’s comments, but I know he wrote to noble Lords setting out our legal position on this. However, I should clarify that a person in group 2 would, to gain that status, necessarily already be recognised as a refugee in the UK and would not subsequently have, or be eligible to have, their claim processed overseas. We intend that prosecutions follow only in egregious cases. I therefore ask noble Lords not to insist on their amendments and the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Kerr of Kinlochard, not to press theirs.

It has long been our position that when someone who is claiming asylum has been waiting for a decision on their claim for more than 12 months, through no fault of their own, they should be able to take up one of the jobs on the shortage occupation list. Motion E deals with this issue and, although I have a great deal of respect for my noble friend Lady Stroud and we have spoken at some length over the last few days, we cannot agree to reduce this period to six months, for the reasons I have set out previously. There is not much more I can add to my previous comments other than to point out academic evidence suggesting that economic factors are in play in secondary movements. For all those reasons, I invite my noble friend not to press her amendment.

Motions F and G deal with inadmissibility and overseas asylum processing respectively. It is vital that we have strong measures in this Bill to deter people from making dangerous journeys and to encourage them to seek asylum in the first safe country that they reach. We cannot agree to measures that would undermine these measures, either by restricting our ability to work on a case-by-case basis on returns or making the job of our negotiators more difficult. I therefore ask the noble Lord, Lord Rosser, and the right reverend Prelate the Bishop of Durham not to press their amendments.

On the question the right reverend Prelate asked me about what advanced discussions are taking place and the point that the noble Lord, Lord Dubs, asked about Rwanda, all I can say at this point is that the Government are talking to a range of partners. I am sure that Parliament will be fully informed when any of those discussions are concluded.

The noble Lord, Lord Dubs, has the respect not just of me but of the whole House. Turning to Motion H, I know how strongly he feels on the subject behind his amendment relating to family reunion, but there are risks that the proposed new clause creates a very broad duty that was not intended.

Moving on to Motion J, I also understand the strength of feeling on having a target number for refugee resettlement, noting in particular the amendment tabled by the right reverend Prelate the Bishop of Durham. I also reflect in this context on Motion K and the amendment concerning genocide tabled by the noble Lord, Lord Alton of Liverpool. But I can only say again that we already have generous family reunion offers, that we have numerous safe and legal routes to the UK, and that a person fleeing genocide is already likely to qualify for protection, as I said, under either the refugee convention or the ECHR.

The UK is firmly committed to protecting ethnic and religious minorities in Iraq. We raise this regularly with the Government of Iraq and the Kurdistan Regional Government, and we continue to monitor the situation of the Yazidis and other minority groups in Iraq. But I will take back again those comments on religious bias, because it is not the first time that the noble Lord, Lord Alton, has raised them with me.

I do not think that the amendments tabled to Motions H, J and K are necessary, so I invite the noble Lord, Lord Dubs, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Alton, not to press their amendments.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords and noble and learned Lords who spoke in such a vital debate. The House will forgive me for not waxing lyrical by way of summary—out of respect for noble Lords, self-discipline and the need to get on and vote. I just say that I heard not a single constitutionally or legally coherent argument against the vital overarching protection for the refugee convention in Motion C1. With that, I ask noble Lords to agree Motion C1.

Metropolitan Police: Strip-search of Schoolgirl

Baroness Chakrabarti Excerpts

Tuesday 22nd March 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, on the latter question, the outcome of that will be forthcoming in the review undertaken by the IOPC. In terms of police and the interface with vulnerable people and children, it is essential that front-line police recognise vulnerability in children and young people regardless of the circumstances around any interaction. We have funded various training programmes for social workers, health professionals, police and safeguarding leads in schools, and the Home Office-funded National Policing Vulnerability Knowledge and Practice Programme shares the very best practice across forces. As I say, on the noble Lord’s latter question, that is for the IOPC to conclude in its investigation, which I understand has almost finished.

[Baroness Chakrabarti (Lab)]

My Lords, I note that your Lordships are rightly concerned about data and evidence gathering, which we need to do in any problem-solving exercise. But as my noble friend Lady Lawrence of Clarendon said just yesterday, what evidence do we need after all these years—I would add, after recent years in particular—that we have a problem with police culture? It is not just an issue of data; it is an issue of culture, leadership and, I would say, law. We have just passed sometimes controversial police legislation, and the broader the power, the greater the discretion. If there are, as there always are, because humans are human—

[Noble Lords]

Question!

[Baroness Chakrabarti (Lab)]

Thank you for that. If there are questions of discretion, there will be questions of abuse of power. What were the teachers doing when this happened? What instructions will be given to the new appointee to the Metropolitan Police? What will we do about future broad powers before we hand blank cheques to the police?

[Baroness Williams of Trafford (Con)]

I will try to answer those questions rapidly because I know that other noble Lords are keen to get in. Teachers have a very clear duty of care to the children in their schools; that is writ large in every safeguarding policy in every school. In terms of culture, I know that Dame Angiolini and the noble Baroness, Lady Casey, in both their pieces of work for the Home Office, are involved in looking at the culture within the police. I do not think that anyone is trying to whitewash, for want of a better word, the fact that there are issues of culture within the police. We have seen so many incidents—Sarah Everard, to name but one. It is clear that over the last couple of years, BAME representation in the police has been much more representative of the population at large, and that can only be a good thing.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

[The Lord Bishop of Durham]

My Lords, I shall speak to Amendments 40 to 45 in place of my friend, the right reverend Prelate the Bishop of Gloucester, who greatly regrets that she cannot be in her place. She is very grateful to the noble Baronesses, Lady Lister and Lady Chakrabarti, for their support, and to Women for Refugee Women for its briefings.

Amendments 40 to 44 relate to Clause 31. They are being brought back at this stage because the Government’s response stopped short of providing the reassurances we hoped for. Some 27 organisations with significant expertise in supporting people seeking asylum support these amendments to Clause 31.

In Committee, the Minister stressed that Clause 31 was necessary to provide clarity and consistency of decision-making, the argument being that proving a status of persecution on the basis of reasonable likelihood is too vague and inconsistently applied. Clause 31 seeks to resolve this apparent lack of clarity by instead inserting the balance of probabilities test and a new fear test. This will raise the standard of proof for gaining refugee status, which will have a disproportionate impact on certain vulnerable groups. For women fleeing gender-based violence and those seeking asylum on the grounds of sexuality, providing this increased proof will be difficult and is likely to be highly traumatising, particularly given what we already know of the Home Office’s culture of disbelief and approach to such victims. For this reason, the UNHCR and, indeed, UK courts have consistently applied the reasonable likelihood test. Clause 31 will put us consciously and deliberately out of step with the way the UNHCR believes that the convention should be interpreted and how our own courts, notably the Supreme Court, have interpreted it.

What is most odd, and the reason for pressing this again, is that the Government believe this change will provide clarity. It is not clear why this should be true. There is already a problem with disbelief in the Home Office, which can be readily shown by the fact that 48% of appeals against the Home Office’s decisions to the First-tier Tribunal are successful, and 32% of judicial reviews are settled or decided in favour of claimants. Clause 31 does not seem to provide any additional clarity. Adding two different limbs to the test with different standards of proof seems a recipe for creating more confusion, making it harder for legitimate victims and so inevitably prompting more appeals. Amendments 40 to 44 therefore look to keep the status quo standard of proof and keep us aligned with the UNHCR and existing UK case law.

I turn briefly to Amendment 45, which relates to Clause 32. This was discussed at length in Committee and I will not go over the old ground, but in short, the interpretation of the convention applied in Clause 32 seems punitive towards women and other victims who use the particular social group reason without any clear or positive purpose. As the noble Baroness, Lady Lister, argued in Committee, if Clause 32 is necessary to clarify the “particular social group” definition, there is no reason it could not be provided by clarifying once and for all that the two conditions are alternatives, not cumulative, as has been the understanding in UK law since Fornah and was recognised by the Upper Tribunal as recently as 2020. This would provide clarity without disadvantaging women and other vulnerable groups.

More than 40 organisations in the ending violence against women and girls and anti-trafficking sectors have supported this amendment to Clause 32. This week, three UN special rapporteurs released a statement on the impact of the Bill, in particular Clause 32, on women. I urge the Minister to listen to their plea. As of 2019, only 26% of asylum applications have come from women. Why would we want to make it harder for legitimate victims of gender-based violence and other gender-related forms of persecution to seek help? Might the Minister say why gender is not mentioned in Clause 32 in the way that sexual orientation is, since it is mentioned in the EU directive on which the Government seek to rely?

Clause 32 not only reverses UK case law but does so against the UNHCR’s standards, following an interpretation of EU law that was rejected by our own Upper Tribunal in 2020. The Home Office did not appeal that decision; nor was that change included in the New Plan for Immigration. It seems to have come from nowhere with little scrutiny or expert oversight. As with Amendments 40 to 44, Amendment 45 is not radical. It simply asks that the Bill continue to operate with the status quo interpretation of the 1951 convention, which is well understood and used by UK courts. The alternative is an unnecessarily punitive barrier being put in front of vulnerable groups. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I am rationing my interventions on Report to facilitate the early and many necessary Divisions. I know that other critics of this Bill are doing the same; I am grateful for that.

Given the events in the last century that led to the creation of the refugee convention, it is particularly distasteful that so much of the Bill seeks to rewrite the convention and its jurisprudence against the interests of the refugee. The Government protest otherwise, of course, but all the world’s leading scholars, practitioners and custodians disagree. I am glad to say that your Lordships’ House gave its own view on that general proposition very clearly earlier this week.

Clause 31 is a case in point. I support the right reverend Prelate’s amendments to it, not least because, among other things, they seek to delete the cross-referencing to Clause 34, which absolutely denies refuge to those who do not currently face a well-founded fear of persecution in part of their country. If one looks at the end of Clause 34, there is no discretion there at all. Although we are grateful for the Minister’s earlier comments about Ukraine, convention protection is based on international law, not exceptional executive largesse. If these clauses are not amended, a Ukrainian refugee might well be denied refuge on the basis that they could return to, for example, a part of their country that is not currently occupied or being bombarded by Russia. There is no discretion in Clause 34 at all, despite Ministers waxing lyrical about discretion and case-by-case analysis being so important. This is discretion that works against the refugee, with convolutions and contortions, when it would be for the courts to protect the refugee.

Another trick that has been used in Ministers’ speeches at various times during the passage of this Bill is talking about Parliament having the right to rewrite and interpret the convention—“Parliament this, Parliament that”. However, they use “Parliament” as a euphemism for “the Home Office”, and it is not. I believe I know what your Lordships’ House of Parliament thinks about that.

[Baroness Lister of Burtersett (Lab)]

My Lords, although I support all these amendments, I will speak only to Amendment 45, to which I have added my name. Once again, I thank Women for Refugee Women for its support with the amendment.

The right reverend Prelate has made the case for returning to Clause 32. I just want to pick up some points made by the Minister in Committee. He argued that it is difficult to attack the definition in Clause 32 as wrong, yet, in effect, that is what the Upper Tribunal did in the 2020 judgment referred to by the right reverend Prelate, when it confirmed that this approach to membership of a particular social group is contrary to the humanitarian objective of the refugee convention. Moreover, in Committee, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, dismissed this approach as a grave mistake that would cause grave injustice. Was he wrong?

Having listened to his less than convincing justification of the definition in Clause 32, I ask the Minister this: does he accept that Clause 32 means that a woman fleeing gender-based violence with good grounds for being accepted as a refugee is less likely to be accepted, as the UNHCR and myriad civil society groups have warned? His answer in Committee—given loyally, if I may say so—was this:

“What it means is that a woman, like anybody else, who has a proper claim under the refugee convention will find refuge in the UK.”—[Official Report, 8/2/22; col. 1452.]


I will repeat the question and ask the Minister to give us a clear “yes” or “no” answer, given that clarity is supposed to be what this clause is all about. Does he accept that Clause 32 means that a woman fleeing gender-based violence with good grounds for being accepted as a refugee is less likely to be accepted—yes or no?

Refugees and Asylum Seekers

Baroness Chakrabarti Excerpts

Monday 28th February 2022 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask Her Majesty’s Government what regular conversations they have with the Office of the United Nations High Commissioner for Refugees (UNHCR); and how this relationship informs (1) their policy on the interpretation of the Refugee Convention, (2) day to day operational policy for the protection of refugees and asylum seekers, and (3) their legislation.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the Home Office has regular and routine engagement with UNHCR on a number of matters, including through its quality protection partnership and as a standing member of the asylum strategic engagement group and decision-making subgroup. There are also additional ad hoc meetings to discuss individual policies and issues.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for that. She will appreciate that due to tragic events in recent days, our defence of the refugee convention is now totally inseparable from our defence of the Ukrainian people. Can the Minister comment on reports over the weekend that relatives of Ukrainians here in the UK have been denied visas? Can she assure us that the widest group with connections to this country will be welcome here and that no one—no one—will be turned back or criminalised on account of their means of escape?

[Baroness Williams of Trafford (Con)]

I can absolutely assure the noble Baroness that everything that we do will be aligned with the refugee convention. The Prime Minister and my right honourable friend the Home Secretary have made a number of statements this weekend to that very end: that we will do everything we can to help our friends in Ukraine.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the noble Baroness, Lady McIntosh, has her name to the opposition to Clause 76 standing part of the Bill. I am happy to pick this up briefly, as she has had to leave.

Clause 76 gives the tribunals a charging power in respect of wasted resources. I do not know whether it is aimed at lefty, liberal lawyers, a group to which I would be proud to belong, although I do not think I quite qualify—lefty maybe, liberal certainly, but I am an ex-lawyer.

I am trying to read my notes, but I cannot understand what I wrote last night.

[Baroness Chakrabarti (Lab)]

Perhaps while the noble Baroness looks at her handwriting, as a lefty, liberal lawyer, I say briefly to the Minister that the immigration and asylum system is the most unlevel playing field in our legal system. Tribunals were set up, as the Minister will remember, with the aim of people being able to represent themselves, not as places for expensive lawyers.

[The remainder of today’s proceedings should be published tomorrow.]