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What’s a notwithstanding clause?
And why it won’t feature in today’s ruling
“You promised me a notwithstanding clause” must surely be one of the stranger complaints made by an outgoing home secretary to the prime minister who appointed her, particularly as Suella Braverman was given something pretty similar by Rishi Sunak as part of her “stop the boats” legislation.
A notwithstanding clause, as I understand it, says that you are allowed to do something notwithstanding a provision elsewhere that says you can’t.
So section 5 of the Illegal Migration Act 2023 says the duty to remove a migrant applies “regardless” of whether the person claims that removal would be unlawful under section 6 of the Human Rights Act 1998 — which says a public authority must not to act contrary to the human rights convention.
“Regardless” is the drafter’s simpler synonym for “notwithstanding” here.
Similarly, section 55 of the Illegal Migration Act 2023 seems to mean that ministers can remove migrants notwithstanding interim measures indicated by the European Court of Human Rights under its rule 39. Of course, a domestic statute cannot permit the UK to ignore its international treaty obligations. But the legislation makes it lawful under the UK’s domestic law.
Braverman complains of Sunak’s insistence that “rule 39 indications are binding in international law” saying he has gone “against the views of leading lawyers, as set out in the House of Lords”. But the prime minister cannot be blamed for preferring the advice he must have received from his attorney general.
The 2023 act will not have any bearing on today’s judgment from the Supreme Court. It was introduced after the case came to court and most of the legislation is not yet in force.
As I said here on Monday (to my paying subscribers), we may infer from the fact that the judgment has been produced so quickly that it is unanimous.
Even when the justices agree on the outcome of a case, they may give different reasons. On this occasion, I would expect to see a clear, single judgment issued jointly by Lord Reed and his four most senior colleagues.
I’m still not willing to speculate on the outcome, and neither is Braverman. I suspect she might have been less reticent if the Supreme Court had sent Home Office lawyers an advance copy of the judgment, as they used to do before rulings began to leak.
Instead, Braverman considers the two possibilities in her letter yesterday:
If we lose in the Supreme Court, an outcome that I have consistently argued we must he prepared for, you will have wasted a year and an act of parliament, only to arrive back at square one.
She is presumably referring there to the perhaps ironically named Illegal Migration Act 2023, which has not yet been brought into force.
“Back at square one” must mean the government would need either new legislation or a new country willing to take those who seek asylum in the UK.
And the alternative?
If, on the other hand, we win in the Supreme Court, because of the compromises that you insisted on in the Illegal Migration Act, the government will struggle to deliver our Rwanda partnership in the way that the public expects.
The act is far from secure against legal challenge. People will not be removed as swiftly as I originally proposed. The average claimant will be entitled to months of process, challenge, and appeal. Your insistence that rule 39 indications are binding in international law — against the views of leading lawyers, as set out in the House of Lords — will leave us vulnerable to being thwarted yet again by the Strasbourg court.
Well, maybe. The migrants would certainly apply for interim measures under rule 39. But, as a former president of the Strasbourg court told me two months ago, his colleagues would “not necessarily” grant them.
And it’s not as if there is any great rush. As far as we know, Home Offie officials have not yet processed individual cases, an obligation they fatally failed to comply with last year. Even if the home secretary wins the appeal brought by his predecessor against a decision blocking the policy of her predecessor, the planes won’t be taking off any time yet.
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