My Lords, I shall continue to limit my interventions in Committee to expressing views that I hold simply as a lawyer, the course I took on Tuesday of last week, when we were discussing Clause 11. That gave us an early introduction to the very provisions with regard to reinterpreting the convention that we are now concerned with. I reserve the right, when we come to Report, to come in on what I regard as the more obviously mean-spirited and ill-judged other provisions, which are, as is patent, designed to deter as many as possible of those who would otherwise wish to seek refugee status in this country.
Clause 29, as has already been pointed out, is an omnibus provision that takes you into further and more specific, and therefore more specifically objectionable, provisions, which take the convention apart and reinterpret it piece by piece. As both noble Baronesses have said, that is itself intrinsically an objectionable way to proceed with regard to one’s legal obligations.
There are three further stand part notices in this group. I will not touch on all of them because time is the enemy today, as it will be on Thursday. On Clause 33, the protection from persecution, as the Bingham Centre for the Rule of Law has valuably pointed out, this clause fundamentally changes the approach to protection from persecution from a focus on meaningful and effective protection against persecution, which our long-established jurisprudence establishes is the correct focus, to a focus on the existence of a reasonable system to prevent, investigate and prosecute instances of where, despite the system, there has been persecution. This refocusing mischievously—and, I suggest, in legal terms, fatally—sidesteps the all-important question of whether the system is likely to protect the individual concerned.
In the interests of time, rather than make comparatively lesser points on the other two named clauses, Clauses 34 and 35, I will pass on. I say only on Clause 35, mentioned by the noble Baroness, Lady Hamwee, that this is directed to Article 1(F) of the convention. Clause 35(2) goes to Article 1(F)(b), concerning serious non-political crimes, and we will come in the next group to Clause 37, which deals with Article 33 of the convention on non-refoulement. Whatever the position on non-refoulement that may be arrived at under the refugee convention, even if, for example, the asylum seeker was found to be a war criminal and so is denied refugee status under Article 1(F)(a) of the convention—see
Clause 35(1) of the Bill—it still is not possible to return that person to their country of origin if they would be persecuted. That is simply precluded by Article 3 of the ECHR.
I have had a helpful exchange of emails with the Bill manager. I asked the Minister at our Cross-Bench meeting a question which she referred to the Bill manager; namely, whether any of these provisions in the Bill were intended or calculated to alter any of the well-established and authoritative case law in this country. Except for one point which the Bill manager made regarding Clause 37, which corrects an ambiguity that arose under Section 72 of the 2002 Act, I am unpersuaded that where there is a recognised departure from our case law, it is properly made under this Bill. I finish at this point.