“It is year nought in the Home Office”

The government’s Nationality and Borders Bill reached its Committee stage in the House of Lords this week, where the Bill is examined and debated in detail. In a marathon session on the fourth day, Shami Chakrabarti raised concerns about Clause 29 of the Bill, which purports to interpret the Refugee Convention. However, the way in which it does so is not in compliance with that Convention.

Some background: according to a briefing from the Bingham Centre, Clauses 29 to 37 of the Bill “go against the interpretation of key terms in the Refugee Convention, as declared by the Courts. They are contrary to the spirit and intention of the Refugee Convention. They are not a good faith attempt to define these terms, but an attempt to recast international law.”

Below we reproduce a slightly edited version of Shami Chakrabarti’s speech.

I have a fundamental objection to the entire approach with this reinterpreting of a shared post-World War II Refugee Convention, not because I do not trust this country to take control of its borders and laws and so on, but because in order for the Convention to work, it has to be an international enterprise, and also because I trust our courts. Although Ministers have said at various points on previous days of this Committee that it is for Parliament, not the UNHCR, to interpret the Convention, what they really mean is that it is for the Home Office and not the courts—neither the courts over there, nor the courts here.

What is really going on is that the Government are not taking the approach that they took with the internal market Bill of just being open and honest about an intention to violate international law: they are doing it by this sleight of hand. You could almost call it “violation laundering”, because they will palm it off on Parliament and, once they have done that—once this rewriting of the jurisprudence of the Convention has been passed through Parliament—we will be the laundromat. It will be on us that decades and continents-worth of international human rights jurisprudence around this Convention will not bite any more to protect those seeking asylum in the UK. I certainly do not want that on my conscience, and I suspect the Committee does not either.

This is wrong because it is a violation of the principle that this treaty has been entered into in good faith, which is obviously a principle of common sense and the Vienna convention, and so on. It is outrageous because it is telling the courts, including our own, that all this jurisprudence that has been built up over years of dealing with cases, with some of the greatest jurists in our history, including Lord Bingham, can go out of the window because the Home Office has a better idea—one which is, of course, designed to trip people up. Let us be clear: it is not designed to extend Convention protection to more people: it goes back to the stump speeches we heard from various noble Lords last week about numbers and so on and is not at all about refugee protection and honouring the Convention.

I get to the point where I actually think that maybe it would be more honest for the Government to do what some noble Lords have occasionally tempted them to do, which is to put their hands up and say, “We don’t believe in this Refugee Convention anymore. It is inconvenient and old-fashioned; we don’t like the numbers, and we’re not having any of it.” There is something Orwellian, distasteful and misleading of the electorate to go through these contortions and perversions of language and law.

Maybe other noble Lords in Committee will have a different view of that, but it is coming to the point where these contortions of language and jurisprudence are so obscene and genuinely Orwellian—I know that word is overused, but for me it was never about having six cameras in the street instead of three; for me, it is about politics and the English language, Orwell’s greatest work, and the abuse of language that leads to the abuse of people. That is what is wrong with this whole section—it is not in good faith. It is not a reflection of the jurisprudence: it is an attempt by sleight of hand to undermine it.

This is not just terrible in the context of refugee protection, which, given what is at stake, is bad enough: it is really bad for Britain and the rule of law, which is arguably one of our greatest exports—not David Beckham’s left or right foot, not even Shakespeare or Elgar, but the rule of law. It is the reason why, unfortunately, so many oligarchs want to come here, in addition to hiding their money. They want to sue each other in our courts and hire some of our noble and learned Lords to go and judge their arbitrations in secret, because there is something magical and special about our law.

When we share our jurisprudence in good faith with supreme courts and constitutional courts around the world, we are not just affecting refugee protection here but influencing that jurisprudence all over the world; and that is an export too. You cannot measure it in pounds and pence, but you can measure it in a truly global Britain and a better world. There needs to be this international conversation between judges here and over there, in good faith and influenced by each others’ jurisprudence. By reinterpreting the Convention, we throw it all out. It is year nought in the Home Office, and all that jurisprudence goes out the window because we have rewritten the Convention via this totally offensive clause. Of course, Ministers have an oath, and they are supposed to respect international law—enough said about that.

I am glad that Lady Williams, is having a break now because it gives me the opportunity to put a question to the Minister, Lord Wolfson, that I tried to put last night in the context of a different Bill, about whether the Government have already instructed parliamentary counsel on the Bill to scrap the Human Rights Act. In the last group, Lady Williams invoked convention rights, the ECHR [European Convention of Human Rights] and our participation in that in defence. So it is an important question in practical terms, because it can always be said that we will not be sending anybody for Article 3 treatment and so on and so forth.

It is also really important because Section 3 of the Human Rights Act requires that all other legislation be read compatibly with Convention rights as far as it is possible to do so. In this pandemic period, I have heard noble Lords opposite, and Ministers in particular, invoking that in defence of the CHIS  [Covert Human Intelligence Sources] Bill, the Overseas Operations Bill, the Police Bill: “Don’t worry, because remember, there is always the Human Rights Act as a catch-all protection—particularly the interpretation provision but also the duty on public authorities to comply.” If parliamentary counsel have already been instructed to draft the Bill that will scrap the Human Rights Act, we need to read all of this in a slightly different light, do we not? Frankly, even in the light that we currently have, it is bad enough.

Shami Chakrabarti is the former Shadow Attorney General, a human rights lawyer and Labour Peer.

For the full speech and debate, see Hansard here.

Image: Official portrait of Baroness Chakrabarti, Source: https://api.parliament.uk/Live/photo/jjCKoH6R.jpeg?crop=MCU_3:4&quality=80&download=true, Author: Chris McAndrew,  licensed under the Creative Commons Attribution 3.0 Unported license.

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