By yesterday afternoon, legal analyses of the government’s Rwanda policy were arriving every few minutes. I’ll provide links to some of them below. But one stood out.
“This is a novel and contentious policy,” it said. “There are risks inherent in such an innovative approach.”
Which public body was making these astute criticisms of the home secretary’s policy? Some human rights group, perhaps? No, they were to be found in a policy paper published by the Home Office. I say “published” by the Home Office because some of it was clearly written by government lawyers. Indeed, the more arcane passages appear to have been written for government lawyers.
Lest you think I have quoted those comments out of context, I should let you read the policy paper’s concluding paragraph, from which they are taken:
As set out above, the treaty, bill and evidence together demonstrate Rwanda is safe for relocated individuals, that the government’s approach is tough but fair and lawful, that it has a justification in the UK’s constitution and domestic law, and it seeks to uphold our international obligations.
This is a novel and contentious policy, and the UK and Rwanda are the first countries in the world to enact it together. There are risks inherent in such an innovative approach but there is a clear lawful basis on which a responsible government may proceed.
For the reasons set out in this paper, a bill that sought to oust all individual claims would not provide such a basis.
The last sentence clearly reflects the advice given to Rishi Sunak by the attorney general, Victoria Prentis. It’s worth reading the preceding section of the policy paper, which explains why clause 4 of the Safety of Rwanda (Asylum and Immigration) Bill allows challenges in exceptional circumstances. It’s a bit technical but if you’ve seen my earlier pieces you should be able to follow it:
Given the requirement to provide automatic suspensive remedies for arguable claims, completely ousting every court challenge or all individual challenges would demand complete confidence that all those individual claims are so unlikely that they could never meet the arguability threshold.
That is not possible, and doing so would mean that there would be no respectable argument that the bill is compatible with international law. It would remove the government’s ability to defend the scheme in Strasbourg and it would undermine our commitment to the binding constraints of the international treaty just signed with Rwanda.
It would also go against Rwanda’s own explicit wishes that our partnership with them remains compliant with international law, and likely collapse the scheme. As such, the bill must allow for claims based on wholly exceptional individual circumstances.
While it is not possible to predict what cases may arise, we do not think there will be many, if any. For any such claim a person would have to provide compelling and credible evidence that their specific circumstances put them at immediate risk of serious and irreversible harm if they were to be removed. That is a very high barrier to cross.
That’s true, but it doesn’t deal with the practical problem: spurious challenges may clog up the courts, at least to begin with.
Of course, that’s why the bill seeks to oust the jurisdiction of UK courts in most cases. And it’s why the bill deems Rwanda to be safe. Read the policy paper’s section on ouster and deeming clauses if you want to know what lawyers say when they are speaking to each other.
Parliament is able, with clear and express words, to limit access to the domestic courts and, while previous attempts have not always prevailed, has done so in the recent past in ways that have been upheld in the courts. Those recent successes have been clauses which, whilst they ousted most claims, did not oust all claims.
The paper explains that it is not possible for parliament to conclude that Rwanda will always be safe for every potential individual liable to removal at any point in the future:
For that reason, the bill does allow for an exceptionally narrow route to individual challenge to ensure that the courts will interpret the relevant provisions in accordance with the will of parliament. Not to do so would mean ministers accepting that those unfit to fly, for example those in the late stages of pregnancy, or sufferers of very rare medical conditions that could not be cared for in Rwanda, could be removed with no right to judicial scrutiny.
In any case, completely blocking any court challenges would be a breach of international law and alien to the UK’s constitutional tradition of liberty and justice, where even in wartime the UK has maintained access to the courts in order that individuals can uphold their rights and freedoms. Furthermore, such a wider ouster clause would have to confront unorthodox obiter dictum made in cases such as Jackson v Attorney-General (2005) and Privacy International (2019).
Unorthodox obiter dictum? An obiter dictum — a remark made in passing — is something said by a judge that is not an essential part of the court’s reasoning and is therefore not regarded as binding. If you are referring to remarks made at different times by different judges, it is normal to use the plural form, dicta.
And what were these unorthodox remarks? The paper does not tell us. But with remarkable foresight, Professor Mark Elliott referred to the most famous of them in a blog he published a few hours earlier.
That was in the case of Jackson. Lord Steyn said that while parliamentary sovereignty was “still the general principle of our constitution” (his emphasis), the “classic account given by Dicey of the doctrine of the supremacy of parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom”.
He went on to say:
The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal.
Elliot referred to the Privacy International case in his earlier blog. In it, Lord Carnwath said:
I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law.
In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.
Those obiter dicta may well be unorthodox. But the government lawyer’s coded message, Elliott’s blog and the letter to the Telegraph by four KCs that I quoted yesterday are all saying the same thing: that if parliament pushes the courts too far, the courts may no longer respect the sovereignty of parliament. As I suggested last Thursday, we would then have a constitutional crisis on our hands.
Here are the links to a few more papers published yesterday.
European Research Group legal committee
The so-called star chamber says:
The prime minister may well be right when he claims that this is the “toughest piece of migration legislation ever put forward by a UK government”, but we do not believe that it goes far enough to deliver the policy as intended.
Bingham Centre for the Rule of Law
In a paper for the Bingham Centre, its director Murray Hunt says
the central purpose of the bill, to conclusively deem Rwanda to be a safe country in light of the recently concluded Rwanda treaty, is contrary to the rule of law because it would amount to a legislative usurpation of the judicial function, contrary to the UK’s constitutional understanding of the separation of powers which requires the legislature to respect the essence of the judicial function.
Society of Conservative Lawyers
The Conservative lawyers say that
While the Rwanda Bill does allow individual challenges and there is the possibility of delay by the courts, our view is that the objectives of the [partnership between Rwanda and the UK] are met better by the Rwanda Bill as drafted than the proposed alternative approaches. In particular… the approach in the Rwanda Bill is far preferable to one that runs a serious risk of collapsing the scheme in its entirety.
Law Society of Scotland
Introducing its response to the bill on behalf of 12,000 Scottish solicitors, the society’s president Sheila Webster said:
We’re very concerned about this bill, and particularly sections that would undermine the independence of our judiciary, along with the UK’s commitment to human rights and international law. Our international reputation is in jeopardy.
Home Secretary
James Cleverly has written a carefully worded comment piece for today’s Telegraph. It accurately sums up the government’s position. But he should have published it at least two days ago — before Mark Francois MP, chairman of the Economic Research Group, published a piece in the Telegraph that says more about politics than law.
The vote is at 7pm tonight.
Update 0945: Parliament’s joint committee on human rights has published its assessment of the bill and the treaty. I find this passage particularly interesting:
Requiring the courts to conclude that Rwanda is safe, even though the evidence has been assessed by the UK’s highest court to establish that it is not, is a remarkable thing for a piece of legislation to do.
Many constitutional lawyers would argue that this is, nevertheless, constitutionally sound because parliamentary sovereignty means that parliament can do anything it wants and the courts must acquiesce. Others would argue, however, that while parliamentary sovereignty is a cornerstone of the UK’s unwritten constitution, the constitution also depends on the separation of powers and the rule of law. It is the role of the courts to assess evidence and come to a conclusion upon it — and parliament is not equipped to carry out this function in the same way.
More fundamentally, effectively reversing by statute a Supreme Court judgment on the facts, preventing the courts from being able to consider the legality of government actions and requiring the courts to come to a particular conclusion (regardless of the evidence) undermines the constitutional role of the judiciary, arguably jeopardising both the separation of powers and the rule of law.
In the absence of a written constitution there are no definite answers to these questions.
You say "if parliament pushes the courts too far, the courts may no longer respect the sovereignty of parliament"
I don't think the courts will need to abandon their respect for the sovereignty of Parliament: I think all they'll need to do is clarify what it's based on, and how it fits with the principle of the Rule of Law.
I've argued, for the last few years, that: a) Parliament holds sovereignty in trust for the people; b) the sovereignty of a standing Parliament (elected to sit more or less continuously for a period of years in order to legislate on whatever matters might arise) would be subordinate to the sovereignty of a Constitutional Parliament (i.e. one elected to legislate solely on a single issue of constitutional importance); and c) in certain circumstances, it would be legitimate for the courts to disregard/overrule an Act of (the standing) Parliament on the presumed authority of a Constitutional Parliament.
There are, of course, a few ifs and buts!
If you're interested, you can find some analysis of this perspective in my 2020 essay, A Trust of Sovereignty ( https://malcolmr.substack.com/p/a-trust-of-sovereignty) which looks at the roots of the doctrine of parliamentary sovereignty and how it has drifted from its origins.
Joshua, this is SO helpful; thank you. Whilst this is a political- cum party political observation what is striking is the serious unwisdom of Sunak having so largely staked his political reputation (and future?) on this one issue, where-though of concern to many - the public at large are more focused on other troubles and failures for which they are likely to be blaming him and the government of the day.
I humbly revisit my earlier observations in this forum about the primrose path of a descent into the watering down of the rule of law as a qualified concept and as a tedious optional extra wherever viewed as an exasperating stumbling block to its policy whim of the moment.
There is far more at stake here than this one unspeakable, odious and in any event unworkable NON policy.
And with complex, essentially humanitarian questions such as this there are no quick answers or fixes. It is to do rather with mundane, principled hard graft.