Member

184: After Clause 48, insert the following new Clause— “Primacy of the Refugee Convention(1) The Asylum and Immigration Appeals Act 1993 is amended as follows.(2) For section 2 (Primacy of Convention) substitute—“2 Primacy of Convention(1) So far as it is possible to do so, primary legislation, subordinate legislation, immigration rules within the meaning of the 1971 Act, and guidance issued by the Secretary of State must be read and given effect in a way which is compatible with the Convention.(2) This section—(a) applies to primary legislation and subordinate legislation whenever enacted, immigration rules whenever laid, and guidance whenever issued,(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation, and(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.”(3) After section 2 insert—“2A Declaration of Incompatibility(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with the Convention.(2) If the court is satisfied that the provision is incompatible, it may make a declaration of that incompatibility.(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with the Convention.(4) If the court is satisfied—(a) that the provision is incompatible with the Convention, and(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.(5) In this section “court” means—(a) the Supreme Court,(b) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session, or(c) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.(6) A declaration under this section (“a declaration of incompatibility”)—(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; (b) is not binding on the parties to the proceedings in which it is made.””Member's explanatory statement These two new clauses follow the model of the Human Rights Act in attempting to ensure harmony between international convention and domestic law. Primary and secondary legislation, immigration rules, and guidance are to be interpreted in compliance with the Refugee Convention so far as possible. Where it is not possible to interpret primary legislation in compliance, the higher courts may make a declaration to that effect.