My Lords, I entirely endorse and support what the noble Lord, Lord Kerr of Kinlochard, has said. I do not want to develop this as a lawyer, because the issues can be very well understood by anybody with any degree of common sense. The starting point is that the English courts have reached a view about the meaning of “directly” in the convention, and the contrary view that has been rejected by the courts is the one found in Clause 36; and Clause 11 is to be read with Clause 36. I take issue with the proposition that the introduction of “may” in some way or other alleviates this problem. It does not. The Government have adopted a view about the meaning of the convention, and the meaning of “directly” that
is critical to the division between groups 1 and 2, which has been rejected. Perhaps more importantly even than the fact that it was rejected expressly by the English courts is that it has not been adopted by the UNCHR either, which has followed the English jurisdiction since the expert round-table conference in Geneva in November 2001, set up specifically to discuss and agree Article 31.
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In Committee, on Report today and in a letter sent at about 5 pm today, the noble Lord, Lord Wolfson, said that in effect—and this is a critical part of the Government’s presentation of this issue—it is up to each member state to decide what is meant by Article 31. You do not need to be a lawyer to know that this is a very misleading statement. Treaties must be interpreted in accordance with the Vienna Convention on the Law of Treaties. They must be interpreted in good faith, in accordance with their ordinary meaning, in their context and in the light of their object and purpose. This is why Lord Bingham said in the Appellate Committee of the House of Lords that
“the Refugee Convention must be given a purposive construction consistent with its humanitarian aims”.
What is the object of interpretation? The search is for a construction and interpretation which was intended by the makers of the treaty, which is why an investigation always starts with the travaux préparatoires. That is true not just in this country but in every country signed up to this treaty. In that exercise, particular weight obviously must be given to the view of the UNHCR, because that is the supervisory body which has been appointed to oversee the implementation of the refugee convention. Furthermore, the significance of the view of the UNHCR on this issue is reinforced by the requirement in Article 35 of the convention, which requires member states to co-operate with the UNHCR. That obviously means co-operating in relation to the implementation in accordance with a particular approach to the meaning of “directly”.
Furthermore, the adjudication of disputes between member states about the convention by the International Court of Justice, which is provided for in Article 38 of the convention, presupposes a common set of values and obligations. You cannot have a court determining something if there is no agreement by anyone, or agreement by only a few people, because they are all following their own interpretations at any one moment in time, according to the government policies of the individual states. All this is a matter of common sense and pretty obvious. People have referred to Ukraine. This is the paradigm example of why this whole approach of the Government’s will not work in relation to “directly”. We are expecting the countries immediately surrounding Ukraine, particularly Poland, to absorb the 500,000-odd people, whereas this country, we are told, will accept an amount of just hundreds who have a close connection with a relative here. Is that consistent with the humanitarian aims of the convention? You would be a very strange person to say that it was. This is a plain breach of the convention—as plain as could be—which must be excluded from the Bill.