A triumph of hope over experience
The Safety of Rwanda Bill sounds tough — but can it deliver?
The draft Safety of Rwanda (Asylum and Immigration) Bill, published by the Home Office yesterday and to be formally presented to parliament today, is notable for what it does not contain.
The home secretary James Cleverly was unable to declare that the bill is compatible with the human rights convention. Clearly it is not.
And the attorney general Victoria Prentis is not one of the bill’s named supporters. Instead, the bill is signed by her deputy, Michael Tomlinson. That was seen as a sign that she might be considering her position.
Also not yet published are the bill’s explanatory notes. So I’ll just have to do the best I can in the summary that follows. My subheadings are taken from the bill.
Like much modern legislation, the bill begins with a statement of its purpose. I don’t think the courts have yet had much to say about how a purpose clause should be interpreted if it clashes with other provisions in the same legislation.
Subsection (2) says:
this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country
I don’t recall any previous legislation referring to the judgement of parliament. The message seems to be that the judgement of parliament displaces the judgment of the Supreme Court three weeks ago.1
Subsection (4) says:
It is recognised that—
(a) the Parliament of the United Kingdom is sovereign, and
(b) the validity of an Act is unaffected by international law.
Recognised by whom? In reality, everyone recognises these fundamental principles. Putting them into a statute cannot give them any greater authority. If anything, it might weaken them by suggesting they may be repealed by future legislation.
Subsection (5) defines a safe country as “a country to which persons may be removed from the United Kingdom in compliance with all of the United Kingdom’s obligations under international law”. Subsection (6) then defines international law in the broadest possible terms.
What clause 1 is trying to establish is that removing a “relocated individual” to Rwanda once the Rwanda treaty has been ratified would not be a breach of international law. But there is an obvious flaw in this proposition.
Parliament makes national law but not international law. Simply saying something is in compliance with international law does not make it so. The most that this legislation can do is to stop the courts of the United Kingdom finding removals to Rwanda unlawful. It cannot affect the UK’s international treaty obligations.
2 Safety of the Republic of Rwanda
Clause 2 explains how these principles are meant to be applied. “Every decision-maker must conclusively treat the Republic of Rwanda as a safe country,” it says. Decision-makers include UK immigration officers answerable to the home secretary as well as courts in the UK that may hear challenges to their decisions.
In case that’s not clear, subsection (3) spells it out:
a court or tribunal must not consider a review of, or an appeal against, a decision of the Secretary of State or an immigration officer relating to the removal of a person to the Republic of Rwanda to the extent that the review or appeal is brought on the grounds that the Republic of Rwanda is not a safe country.
the Immigration Acts;
any other law; and
any other court ruling.
So courts can’t use any of these laws to decide that Rwanda is unsafe.
3 Disapplication of the Human Rights Act 1998
Clause 3 “disapplies” seven sections2 of the Human Rights Act listed in subsection (2):
section 2 (interpretation of Convention rights),
section 3 (interpretation of legislation), and
sections 6 to 9 (acts of public authorities).
This does not mean these provisions are repealed more generally. They still govern other legislation. That seems clear from subsection (1), which says “The provisions of this Act apply notwithstanding the relevant provisions of the Human Rights Act 1998, which are disapplied as follows.” And the rest of clause 3 narrows down the disapplication further.
But clause 3 does mean that a court in the UK, when deciding whether Rwanda is safe, must take no notice of case-law developed by the human rights court in Strasbourg. And the courts will not be allowed to “read down” the new legislation to make it compatible with human rights.
4 Decisions based on particular individual circumstances
Clause 4 includes an exception. In practice, it may not amount to much. But its political implications may be seismic, as we shall see.
It says, in effect, that if there is “compelling evidence relating specifically to [a] person’s particular individual circumstances” that Rwanda is not a safe country for the person in question then a decision-maker does not have to treat Rwanda as safe.
That’s drawn very narrowly and the remainder of clause 4 narrows this exception down further.
There is a comparable exception relating to serious harm in the Illegal Migration Act 2023, which is not yet in force. These provisions may have been added to ensure compliance with article 6 of the human rights convention, which provides for access to a court — or, as a reader has pointed out, article 13, the right to an effective remedy.
5 Interim measures of the European Court of Human Rights
Clause 5 is another ouster clause. It implicitly acknowledges that a person facing removal to Rwanda can still make an urgent application to the European Court of Human Rights. An applicant would have to “exhaust domestic remedies” first. But if those remedies no longer exist, there would be no need to go through the motions.
The human rights court may issue what it calls interim measures. As far as the court is concerned, these are binding on the state concerned. An interim measure was used to block flights to Rwanda in the summer of last year.
Subsection (2) says:
It is for a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply with the interim measure.
The Illegal Migration Act 2023 contains something similar, if more complicated. But there is no escaping what this stark subsection means. A junior minister, on behalf of the United Kingdom, may choose to break what the court responsible for its enforcement regards as a binding provision of international law. The minister would be acting lawfully — but His Majesty’s government would not.
Clauses 6 to 10
The remaining clauses deal with
The most important of these, as far as I can see, is clause 9, which says the legislation does not come into force until the Rwanda treaty takes effect. Although that treaty was signed on Wednesday, it will not come into force until it has been ratified. It was laid before parliament yesterday.
I wrote about ratification yesterday and Alexander Horne has now explained the position in more detail. But the need for the treaty to be ratified before the bill takes effect must surely give opponents in parliament a little more room for manoeuvre.
And that takes us to Robert Jenrick, who would have steered the bill through parliament if he had not resigned as immigration minister yesterday. He told the prime minister he had wanted a “clear piece of legislation that severely limits the opportunities for domestic and foreign courts to block or undermine the effectiveness of the policy”.
One of the great advantages of our unwritten constitution is the unfettered power of our sovereign parliament to create law, and that is a power we must take full advantage of.
The government has a responsibility to place our vital national interests above highly contested interpretations of international law.
In our discussions on the proposed emergency legislation you have moved towards my position, for which I am grateful. Nevertheless, I am unable to take the currently proposed legislation through the Commons as I do not believe it provides us with the best possible chance of success.
A bill of the kind you are proposing is a triumph of hope over experience.
This is very strange. On a domestic level, the bill seems to go as far as it can in disapplying international law and human rights law.
“We are not breaking international law,” Cleverly told MPs yesterday. But his bill allows for the possibility that ministers will ignore the rulings of an international court.
Jenrick did not explain the provisions he was pushing for. But it may be that he saw the “individual circumstances” exception in clause 4 as an important loophole.
The Rwandan government have been clear that they would not accept the UK basing this scheme on legislation that could be considered in breach of our international law obligations. There would be no point in passing a law that would leave us with nowhere to send people to.
It has always been important to both Rwanda and the UK that our rule of law partnership meets the highest standards of international law, and it places obligations on both the UK and Rwanda to act lawfully.
Without lawful behaviour by the UK, Rwanda would not be able to continue with the Migration and Economic Development Partnership.
That point was picked up in the Commons yesterday:
So now we have a bill that is being opposed by those on the left of the Conservative Party who think it goes too far — Prentis, perhaps — and those on the right, such as Jenrick and Braverman, who think it does not go far enough. No wonder people are now talking about the possibility that Sunak will face a confidence vote from his own MPs.
Smoke and mirrors
Might the legislation be challenged on the ground that it is simply unconstitutional? That’s the intriguing question asked by Mark Elliott, professor of public law at the University of Cambridge, in one of his now rare but always authoritative instant blogs.
After all, he explains, this bill is
an affront to the separation of powers and the rule of law, in that it effectively reverses a Supreme Court judgment, undermines the judicial function and attempts to remove from the courts’ jurisdiction questions about the legality of government decisions. In orthodoxy, the principle of parliamentary sovereignty — which makes whatever parliament enacts lawful — would be a complete answer to these charges.
But in Privacy International, Lord Carnwath said “it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review”. For a court to take the step implied in this comment — by holding, in effect, that parliament had exceeded its authority by seeking to limits the courts’ constitutional role — would be fraught with risk for the judiciary.
It is, however, conceivable that the Rwanda Bill might transform what has largely remained a hypothetical question about the fundamental relationship between parliament and the courts into a live one.
A trial of strength? A constitutional crisis? We haven’t had one of those since Boris Johnson tried to prorogue parliament in 2019. It would be fascinating — if it ever gets that far.
In the meantime, I cannot do better than bring you Elliott’s damning conclusion. Ultimately, he believes, the Rwanda Bill is as parochial as it is hypocritical:
It is parochial in the sense that it proceeds on the basis of the sleight of hand that the UK parliament, because it is sovereign, can somehow free the government from its international legal obligations. But this is to conflate the sovereignty of the UK parliament in domestic law with the UK’s sovereignty on the international plane as a state.
It is precisely in exercise of its state sovereignty that the UK can enter, and has entered, into binding treaty obligations. The peculiarity that the UK’s parliament, as a matter of domestic law, is sovereign in the sense of being (in orthodoxy, at least) beyond judicial control cuts no ice whatever on the international level.
Meanwhile, the bill reveals an astounding level of hypocrisy in the sense that it is premised on a policy that presupposes that Rwanda will honour its obligations in international law while demonstrating that the UK is prepared to breach its own obligations.
It follows that the Rwanda Bill, and the policy to which it seeks to give effect, is ultimately a smoke-and-mirrors exercise that promises something which, as a matter of legal fact, it simply cannot deliver.
Like so many challenges to the rule of law during the past five years, the Safety of Rwanda Bill may simply be blown away.
There is also a human rights memorandum. This says it is the government’s view that clause 4 complies with article 13.
On clause 5, the government “considers that the provision is capable of being operated compatibly with convention rights, in the sense that it will not necessarily give rise to an unjustified interference of those rights, meaning that the legislation itself will not be incompatible”.
The bill will be debated by MPs next Tuesday.
Update 8 December: The Institute for Government has published a valuable analysis of the bill and the treaty by Professor Tom Hickman KC.
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And it’s good to see the bill’s drafter recognising the distinction between “judgement” and “judgment”.