Will Rishi’s law work?

Sunak wins the headlines, but can he spin the law?

For the UK’s least shouty newspaper, this is quite a headline:

To get round a ruling of the Supreme Court that asylum-seekers would be at risk of ill-treatment if sent to Rwanda, the prime minister promised an international treaty backed by “emergency” legislation. What could possibly go wrong?

Treaty

Last year’s deal, under which the UK paid Rwanda to take in people who had claimed asylum in Britain, was a non-binding memorandum of understanding rather than a formal treaty.

As Alexander Horne explained in the Spectator,

this ensured that it became effective immediately and was not subject to proper parliamentary scrutiny. A treaty would have been laid before parliament for 21 sitting days and the House of Commons would have had a theoretical power to debate the agreement and delay ratification.

“It is unacceptable,” said the House of Lords international agreements committee in October 2022, “that the government should be able to use prerogative powers to agree important arrangements with other states that have serious human rights implications without any scrutiny by parliament.”

This time, we are to have a formal treaty with Rwanda. We can be sure it will be carefully scrutinised in parliament.

But what’s to stop it being overturned by the courts like last year’s deal? The government has two answers.

Times change

In the spring of last year, the Supreme Court concluded yesterday, there was a real risk that asylum-seekers’ claims would not be decided properly in Rwanda. That would put them at risk of being returned directly or indirectly to their country of origin, where they would be in danger.

However, Lord Reed and his four most senior colleagues added, “the structural changes and capacity-building needed to eliminate that risk may be delivered in the future”.

James Cleverly, the new home secretary, told MPs he was struck by that observation. Though it was obiter — not part of the court’s reasoning — it was quoted in the court’s summary and was read out by Lord Reed, the president.

The government had “a plan to provide exactly that certainty”, Cleverly added.

A few hours later, the prime minister explained his plan at a news conference. A treaty with Rwanda would

provide a guarantee in law that those who are relocated from the UK to Rwanda will be protected against removal from Rwanda. And it will make clear that we will bring anyone back if ordered to do so by a court.

But there is an obvious problem. What the Rwandans have said and what they have done are two different things.

For example, Rwanda signed an agreement with Israel at the end of 2013, under which migrants from Eritrea and Sudan would have their asylum claims processed in Rwanda.

“There is no dispute that persons who were relocated under the agreement suffered serious breaches of their rights under the Refugee Convention,” the Supreme Court said. The UN refugee agency “found that asylum seekers who arrived in Rwanda under the arrangement were routinely moved clandestinely to Uganda”.

The court had no reason to doubt that Rwanda had given assurances to Israel in good faith. At issue was its “practical ability to fulfil its assurances”.

Is that really likely to have changed in less than two years, despite the practical help that the UK has promised?

New legislation

“I am announcing today that we will take the extraordinary step of introducing emergency legislation,” Sunak said.

This will enable parliament to confirm that, that with our new treaty, Rwanda is safe. It will ensure that people cannot further delay flights by bringing systemic challenges in our domestic courts and stop our policy being repeatedly blocked.

There is nothing particularly extraordinary about emergency legislation. Being rushed, though, it is less likely to achieve its aims.

It sounds as if the legislation will try to oust the jurisdiction of the courts. But judges often find a way round so-called ouster clauses.

In any event, it’s only “systemic” challenges that will be blocked. So individuals, one presumes, will still be able to argue that their claims have not been properly considered.

These could be fast-tracked through the tribunal system. And migrants approved for removal would no doubt complain to the European Court of Human Rights.

However, Sunak has thought of that too.

I told the parliament earlier today that I am prepared to change our laws and revisit those international relationships to remove the obstacles in our way. 

So let me tell everyone now: I will not allow a foreign court to block these flights. 

If the Strasbourg court chooses to intervene against the express wishes of parliament, I am prepared to do what is necessary to get flights off.

This seems to be a reference to interim measures — effectively, a temporary order granted to prevent irreparable damage. I reported this week that the human rights court was tightening up the wording of rule 39, under which these orders are granted.

The human rights court regards interim measures as binding in international law. It looks as if Sunak is willing to challenge that.

But I don’t read his remarks as a promise to pull out of the human rights convention. That would have major consequences, not least for Northern Ireland, and could not possibly be implemented before the next general election.

Will it work?

It is not unconstitutional for parliament to reverse a ruling by the UK’s highest court. This was done, for example, when the War Damage Act 1965 was enacted in response to the Burmah Oil case.

But barristers’ leaders expressed “grave concern” yesterday. Nick Vineall KC, chair of the bar, said:

If parliament were to pass legislation the effect of which was to reverse a finding of fact made by a court of competent jurisdiction, that would raise profound and important questions about the respective role of the courts and parliament in countries that subscribe to the rule of law.

We hope that any such legislation would only be brought forward after the most anxious and careful consideration of its constitutional propriety.

Sunak did not say when his “emergency” legislation would be introduced. Logically, it cannot be finalised until after a treaty is signed and ratified. Then, migrants will be selected for removal and their lawyers will bring such challenges as they can, both in the United Kingdom and at the human rights court. All that will take time.

There can be no guarantee that planes will take off before the next general election, if at all. But at least Sunak now has the headlines he wanted.