Lord Faulks (Non-Afl)

My Lords, the amendment is legally coherent and that is very much in its favour. It contains a tacit acknowledgment of the dualist system that we have in this country. That means that we are bound by domestic law and bound by international law only in so far as it has it has been incorporated in domestic law. The noble Baroness is right that there are references to the refugee convention in domestic law—for example, Section 2 of the Asylum and Immigration Appeals Act 1993. The main provision of the refugee convention that attracts attention is Article 33, the non-refoulement provision. Does membership of the refugee convention require a particular response from the courts of this country? There is reference to it in the Supreme Court decision on the Rwanda policy, although it was not entirely clear, to me at least, what effect it had on the outcome of the case. The much greater part of the judgment was taken up with the review of the relevant articles of the ECHR, which are incorporated into our law by the Human Rights Act. What is quite clear is that it is always open to Parliament to exclude references to international law from domestic legislation. In which case, any obligations that this country has under the refugee convention exist only as a matter of international law. I say that without meaning to diminish the importance of international law; we should comply with international obligations as far as possible. However, there is an increasingly recognised view that the 1951 convention was of its time and that it is necessary to look again at its application in the light of the challenges that immigration now presents not just to this country but to other European countries and to countries such as Australia that have signed up to the convention. If the leaked memo reported in Saturday’s Times is correct, the Attorney-General himself acknowledges that the time may have come to look again at the convention and its application to the immigration and asylum system. It is important to stress that no body or institution is empowered to determine authoritatively what the convention means. This distinguishes it from the ECHR, where the European Court of Human Rights performs that task. My view is that it would be best to remain a member of the refugee convention but to remove any references to it from domestic legislation, so that Parliament can determine the proper policy in relation to immigration and asylum without fearing interpretation of that legislation by reference to the convention. This amendment does precisely the opposite of that, which is the reason that I oppose it, despite its legal coherence. I anticipate that the Government may not altogether be inclined to accept the amendment either, because to do so would hard-wire the convention, with all its imprecision, into our domestic law. This would create just the sort of difficulties that we have had with the European Convention on Human Rights and the obligation, under Section 2 of the Human Rights Act, to take it into account. It should be possible to remain signed up to the refugee convention without unduly or unnecessarily hampering our obligations. Australia has managed this, as I said. I agree with the noble Lord, Lord Wolfson, in his 188-page analysis of the various issues that are thrown up by the convention. He is right that we may have to think again, even without this amendment, if our courts interpret domestic law in a way that appears to incorporate international law. Important though it is, it confuses the issue. Parliament ought to be sovereign in these matters and to decide the correct policy.