I agree with the right hon. Lady, and I can tell her why the Government are afraid of proper scrutiny. It is because proper line-by-line scrutiny of this Bill would illustrate that it breaches our international obligations under the ECHR, breaches our obligations under the refugee convention and breaches our obligations under the Council of Europe convention on action against trafficking. That is to mention just three, but there is also the international convention on the rights
of the child, and I could go on and on. That is why they do not want the scrutiny. What really infuriated me yesterday was that, when some of us were actually trying to make arguments based on evidence and the law, the Minister was far more interested in parroting the populist slogans coming from his Back Benchers, which really had no basis in law and no basis in evidence, than in addressing the amendments we are trying to make.
I will spend a bit of time talking about the amendments I have tabled, because I think they are important. It is not just that I think they are important, but they reflect issues that have been widely raised in briefings from home-based organisations, such as the Equality and Human Rights Commission, the Scottish Human Rights Commission, the Law Society of England and Wales, and the Law Society of Scotland. I assure Conservative Members that the Law Society of Scotland is not a bastion of lefty lawyers—I wish it was, but it is not.
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Amendment 1 would prevent section 3 of the Human Rights Act from being disapplied under the Bill, because if that happens, the courts will be prevented from interpreting the Bill to avoid human rights incompatibilities in provisions, unless those provisions are ambiguous. The court will then be far more likely to issue declarations of incompatibility instead—[Interruption.] I notice that, despite everything I have said, the Minister is now conducting a lengthy and casual conversation with the chap sitting beside him. This is not how we should be conducting ourselves in this place. In my previous job, if I sat and held a conversation with the barrister or advocate sitting beside me when the other advocate was speaking, I would have got a telling off from the judge. It is nothing to do with me; it is wholly disrespectful to the process of parliamentary scrutiny. This is really important.
The Human Rights Act was passed by this Parliament. All responses to the Government’s consultation on the Bill of Rights, and the vast majority of responses to the consultation by the Joint Committee on Human Rights on the Bill of Rights, showed that people thought section 3 of the Human Rights Act was working well, and that it does not undermine parliamentary sovereignty because it can be brought into play only where provisions are ambiguous. Despite all that evidence and scrutiny, the Government want to go ahead with disapplying section 3 of the Human Rights Act in the Bill, and by tabling amendment 1, I want to know the basis for that. How can the Government be so confident that their view is right when it is in direct opposition to the weight of responses to their own consultation and the responses to my Committee? We all know the answer. They are not confident that their view is right; they just want to drive it through on a wave of populist rhetoric.
Amendment 123 would seek to ensure that the United Kingdom will comply with its obligations under article 31 of the Refugee Convention. The Government have not explicitly addressed the Bill’s compatibility with that convention in the documents that accompany the Bill, but I understand that their argument is that protections under the refugee convention apply only to those who fall within the group of those who cannot be penalised under article 31—that is those who “come directly” to
the United Kingdom. The Government rely on that phrase to justify their interpretation that asylum seekers should claim asylum in the first safe country they reach, as reflected in clause 2(5), which states,
“a person is not to be taken to have come directly to the United Kingdom from a country in which their life and liberty were threatened…if, in coming from such a country, they passed through or stopped in another country outside the United Kingdom where their life and liberty was not so threatened.”
In practice, that would exclude any asylum seeker who travels to the UK by any means other than a direct mode of transport from the persecuting state, and that is clearly not the intention of the refugee convention.
The Government’s definition of coming “directly” as set out in clause 2(5) is inconsistent with the interpretation of article 31 of the refugee convention, as set out by experts assembled by the UNHCR in 2001. Following analysis of the travaux préparatoires, they concluded that the drafters of the refugee convention
“only intended that immunity from penalty should not apply to refugees who found asylum or were settled, temporarily or permanently, in another country.”
The Government’s position is also inconsistent with the similar interpretations of article 31 made by the English High Court in the case of R (Adimi and others) v. CPS and Secretary of State for the Home Department. The interpretation was discussed by the House of Lords, by no less than Lord Bingham, who confirmed, in another case, involving Asfaw, that “a short stopover” in another country on the way to claiming asylum in the UK does not preclude reliance on article 31 of the refugee convention. So there is binding authority from the highest court in England that the Government’s interpretation of article 31 of the refugee convention is wrong.
It is also noteworthy that the interpretation of “coming directly” in the Bill is much stricter than the interpretation set out in the Nationality and Borders Act 2022, which states that individuals will not be considered to have come directly only if they “stopped” in another country and could not reasonably have been expected to claim asylum there. It is therefore worthy of comment that the Government have substantially altered their understanding of the legal meaning of a well-established international treaty in the space of a year on the basis, I think, that they are trying to say there is some sort of evolving interpretation. But if we look at the interpretation by both our domestic courts and in the convention, the Government are wrong and the interpretation I set out is correct.
Amendment 124 removes the prohibition for the first 28 days of detention on the grant of immigration bail by the first-tier tribunal and the ouster of judicial review detention. I will not go into the detail of that because it is quite complicated, but the Government’s contention that to fall back on habeas corpus would fulfil our article 5 commitments under the ECHR is highly dubious. I hope the Minister, or perhaps his boss the Home Secretary, will come before my Committee so that we can discuss these matters in a bit more detail than we are able to do today.
Amendments 125 to 127 are designed to ensure that the disapplication of modern slavery provisions extend only in accordance with the Council of Europe’s convention on action against trafficking. That has been spoken to in some detail already by a couple of Conservative Members, so I will not take up more time talking about that.
I want to end with one or two other comments. During the debate, several hon. Members spoke about the plight of women in Iran and Afghanistan. I am not really quite sure how the Government think a woman who is fleeing the persecution of women in Iran or Afghanistan can come legally to this country, particularly in the case of Iran. I would be really interested to hear the answer to that, because it concerns me that clause 2(4) states:
“The third condition is that, in entering or arriving as mentioned in subsection (2), the person did not come directly to the United Kingdom from a country in which the person’s life and liberty were threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion.”
I just wonder why sex is missing from that list. Some of the most serious persecution going on in the world today is against women on the grounds of their sex. I mentioned Afghanistan and Iran. We also know about the weaponisation of rape against women in war zones. People talk about Ukraine, but it is happening in Africa all the time.
Amendment 2, in the name of the hon. Member for Aberavon (Stephen Kinnock), adds the word “gender” to that list, but I think the word should be “sex”. Gender is a social construct. These women are not being persecuted on the basis of a social construct; they are being persecuted on the basis of their sex. Something on which I think the Minister and I can agree is that the United Kingdom should be very alive in its global outreach to protect women’s rights, so I ask the Government to consider adding sex to that list.
My hon. Friend the Member for Glasgow Central (Alison Thewliss) said that we should add sexual orientation to that list. I completely agree with her on that because of what has happened in Uganda in particular, but there are many other countries in the world where it is not legal to be gay. It is not legal to be gay in Iran. They still hang people from cranes in Iran for being gay. So I think we need to think about that. The Minister may say that membership of a particular social group is traditionally interpreted to include LGB and trans people, but it does not include sex. We need to add sex to the list and be clear that it includes LGBT people as well. I will just leave it there for now.