The government got its Safety of Rwanda (Asylum and Immigration) Bill through the House of Commons last night by a majority of 44, the same majority as it had in the second reading debate last month. No amendments were approved.
Much of the debate was about human rights and the so-called “pyjama injunctions” issued by the human rights court in Strasbourg. Interim measures issued under the court’s rule 39 famously prevented migrants being sent to Rwanda in June 2022, triggering a debate about the UK’s continued support for the human rights convention.
Robert Jenrick, the former immigration minister, wanted to prevent any more late-night injunctions being issued. He moved an amendment which, if passed, would have said that the Strasbourg court’s interim measures were not binding on the United Kingdom.
It was the former lord chancellor Sir Robert Buckland who pointed out that the human rights court was already reforming rule 39. “I think the reforms will be significant,” he said.
Buckland was referring to the proposals I reported here last November. If agreed, they would mean that interim measures would be available only in “exceptional circumstances” where there was an “imminent risk of irreparable harm”.
The court also announced that it will end the much-criticised practice under which judges who deal with applications for interim measures are not normally named.
How can we be sure those reforms are “now more or less sewn up”, Sir William Cash wanted to know.
I have “sources”, Buckland told him, while admitting that “the court has not been specific about precisely when these reforms will be brought in”.
But none of this gets round the fundamental problem facing the government: a national legislature cannot amend international law.
Parliament has already passed legislation which the government believed would enable it to get round interim measures. But that provision of the Illegal Migration Act 2023 is not yet in force.
And now we have clause 5 of the Rwanda bill:
This means that 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.
That minister with that responsibility is currently Michael Tomlinson, a former government law officer. He told MPs yesterday that the government would not have inserted clause 5 if it was not prepared to use it. “I confirm to the committee that we can and will lawfully use that power if the circumstances arise,” he said. “The discretion is there.”
Where would that leave civil servants? At present, they give immediate effect to an indication under rule 39. Current guidance tells them: “where you have been notified that a R39 indication has been made you must defer removal immediately”.
This would be amended, said the Home Office permanent secretary Sir Matthew Rycroft yesterday. It will says:
Where a rule 39 measure is indicated by the Strasbourg court, the Home Office case worker must immediately refer the case for a ministerial decision on whether or not to proceed with removal.
This must be done without delay, irrespective of when the Strasbourg court has issued an interim measure. Given the nature of removal flights, officials should be available to advise ministers at short notice and during evenings and weekends.
Home Office officials shall proceed with removal if the relevant minister approves that course of action.
But it won’t be quite the pyjama drama that this wording implies. As Rycroft acknowledged, the minister could not approve a removal without first being given three sets of advice. New guidance from the Cabinet Office will say:
As a matter of UK law, the decision as to whether to comply with a rule 39 indication is a decision for a minister of the crown. Parliament has legislated to grant ministers this discretion. The implications of such a decision in respect of the UK’s international obligations are a matter for ministers.
In the event that the minister, having received policy, operational and legal advice on the specific facts of that case, decides not to comply with a rule 39 indication, it is the responsibility of civil servants — operating under the Civil Service Code — to implement that decision. This applies to all civil servants.
That wording needs to be read carefully. The decision is one for ministers “as a matter of UK law”. The implications for “the UK’s international obligations are a matter for ministers”. In other words, ministers may be breaking international law but that’s for them to deal with.
Secondly, civil servants must support that decision — even though they may be facilitating a breach of international law. Presumably that’s meant to give them some cover — not against any legal action, which would be unlikely, but against their own consciences.
Dave Penman, general secretary of the FDA trade union, said it was “madness” to tell civil servants to break the law. “They’re essentially advising civil servants to act illegally, which will put them in conflict between their obligation to uphold the rule of law and to follow their instructions from elected ministers,” he said.
The new guidance “succeeded in pulling several potential rebels back from the brink,” The Times reported. But this was at the expense of a row with the civil service unions.
“As drafted, as we intend this bill to progress, it will be in complete compliance with international law,” the home secretary James Cleverly told MPs last night. That may be so.
But, as Cleverly also said on the face of the bill, it is not compatible with the human rights convention. And if ministers rely on the legislation to protect them from breaking international law, they will find it provides no protection at all.
One cannot help feeling that Civil Servants may be placed in invidious positions.