Contribution
My Lords, this is an interesting group with two distinct parts. I must confess that I am not immediately drawn to Amendments 184 and 185 in the name of the noble Baroness, Lady Chakrabarti. They would, in effect, incorporate the refugee convention into the domestic law of the UK, as identified by the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier. I therefore cannot accept that, given the unhappy experience that we have had of the Human Rights Act and the unpredictable effect of incorporating an international convention into domestic law. I am not tempted to repeat that mistake. I therefore support the Government in their sensible and inevitable rejection of the amendments that the noble Baroness proposes.
I shall not be drawn into a broader conversation about the suitability of the refugee convention, as the noble Lord, Lord Faulks, and the noble Baroness, Lady Fox of Buckley, were. It is clearly an interesting and important debate, which builds on comments made by the noble Lord, Lord Macdonald, about whether, in principle, a well-founded fear of persecution is the correct test for the grant of asylum. These are important and justifiable discussions, but a debate on these amendments in Committee is not the place to have them.
All this takes me to the wording of my Amendment 203I. I invite Members of the Committee who have a copy of the amendment just to look at it for a moment. This amendment emulates the one laid by the noble Baroness in seeking to revise the provisions of earlier statutes. It would amend Section 31 of the Immigration and Asylum Act 1999 by inserting a new subsection (2). This would provide:
“For the purposes of subsection (1) a person is not to be taken to have come directly to the United Kingdom from a country in which their life or freedom were threatened as mentioned in that subsection if, in coming from such a country, they passed through or stopped in another country outside the United Kingdom where their life or freedom were not so threatened”.
That provision accurately reflects the provisions of Article 31 of the refugee convention.
It is clear that, in 1951, the state parties were of the view that, for an appropriate claim for asylum to be made, it must be made by someone who had come directly from an area where their life or freedom were threatened. The stretching of the term “come directly” to include spending a number of years in another safe country where they could have claimed asylum is a matter of domestic law, which this Parliament is able to revisit. It ties in with my Amendment 203J, which the Committee will recall we debated on 3 September. It is clear that one option open to the Government in creating a disincentive effect is to go back to the original intended wording of the refugee convention.
Amendment 203I is a stand-alone provision because it protects the rights of the United Kingdom as a state party to the convention. It is intended to avoid the deeply regrettable state of our domestic law in respect of this provision of the refugee convention, which has gone far beyond what our international obligations actually are. If noble Lords are worried, as some may be, about our possible repudiation of the refugee convention by some future Government and/or a sizable fraction of the public, they should support measures that reinforce and restate the United Kingdom’s rights as a state party under the refugee convention, and they should align domestic law with the international law.
As Professor Ekins, professor of constitutional law at Oxford, made clear in his 2019 article in the book The Political Philosophy of Refuge, case law has rendered the right afforded to a nation, as stated in Article 31, effectively nugatory. This undercuts self-government and warrants condemnation, I submit, from this Parliament. But its consequences are broader than that, in that, as a consequence, it encourages hundreds of thousands of refugees to become economic migrants, leading to the deaths of potentially thousands at sea; the vast extension of the people trafficking industry, with all the horrors that that entails; and the exposure of European peoples, especially in Greece and Italy, to an ongoing stream of new arrivals, few of whom will ever return home.
The state’s right to exclude asylum seekers and some refugees is an important power that protects the common good of the political community. It preserves the distinction between citizen and non-citizen, on which decent social life and effective self-government depends. The commitments that the states undertook in 1951 in the convention were carefully framed to require refugees to be treated well but not to expose states to an open-ended liability to accept persons fleeing persecution or war, let alone poverty. This amendment restores the meaning—the correct meaning on any reading—of Article 31 of the refugee convention. I commend it to the Committee and the Government.