On Wednesday, the government finally published its promised ‘emergency legislation’, after the Supreme Court ruled in November that the Rwanda scheme was unlawful. The new legislation follows the agreement of a new treaty with Rwanda on Tuesday which aimed to ‘strengthen the UK-Rwanda Migration Partnership’ and deal with the serious problems identified by the Supreme Court.
Rishi Sunak has made the small boat crossings into a totemic issue but it has now rather spun out of control. Some might argue that the main ‘emergency’ the legislation is really designed to address is a crisis in the Conservative party over the issue of migration. The new legislation may not have been strong enough for former immigration minister Robert Jenrick. But his resignation yesterday should not disguise the fact that this Bill will prove to be hugely contentious and legally problematic.
Rather than leaving the courts to determine whether the new Rwanda treaty resolves the concerns the Supreme Court had about Rwanda being a safe country, the new Bill introduces what are frequently referred to by lawyers as ‘ouster clauses’. These seek to preclude the court considering that question at all.
Clause 2 of the Bill states simply that ‘every decision-maker must conclusively treat the Republic of Rwanda as a safe country.’ As Professor Steven Peers noted yesterday, this introduces an ‘apparently irrefutable presumption’ that Rwanda is ‘safe’ and would stop the domestic courts from hearing a challenge on this point.
The Bill does not stop there. It also seeks to disapply some parts of the Human Rights Act. The ouster would apply ‘notwithstanding’ any interpretation of international law (including the European Convention on Human Rights) by a court or tribunal. But this is only in respect of questions relating to the safety of Rwanda, or whether the person would receive fair and proper consideration of their claim in Rwanda.
Clause 4 provides a safeguard of sorts, allowing removal decisions to be challenged on the basis of ‘compelling evidence relating specifically to the person’s particular individual circumstances.’ But that clause also makes clear that such a challenge cannot be made on the grounds that Rwanda is ‘not a safe country in general’ or that the person might be returned to a country where they would face mistreatment contrary to international law obligations (including the Refugee Convention).
Finally, the Bill also makes clear that a domestic court or tribunal should not have regard to any ‘interim measure’ made by the European Court of Human Rights, stating that 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.’
There is a certain irony that one of the reasons Rishi Sunak gave for the government failing to go even further in seeking to disapply our international obligations is that the Rwandan government said ‘they would not accept the UK basing this scheme on legislation that could be considered in breach of our international law obligations.’
While these measures fall short of calls to disapply the entirety of the ECHR, or leave the Convention system and the Refugee Convention, they are nonetheless hugely controversial. As Joshua Rozenberg has noted, the Home Secretary, James Cleverly, has not been able to declare (as is normally the case with new legislation) that the Bill is compatible with Convention rights.
I think it unlikely that the ouster clauses will survive contact with the House of Lords. The majority of Peers might, quite reasonably, conclude that the government should allow our courts to rule whether or not Rwanda is a safe country after the new treaty. After all, James Cleverly stated only two days ago that ‘the Supreme Court recognised that changes may be delivered which would address their conclusions – this treaty responds directly to that.’ The move to introduce legislation of this sort suggests that he is far from confident that the new treaty is really sufficient.
In the very unlikely event that the Bill passes through Parliament unscathed, it will leave the courts in something of a quandary. The precedent this legislation would set is appalling. At worst, it will encourage other countries to believe that they can simply ignore their international obligations.
Judges can read the opinion polls like the rest of us and will know it is unlikely the current government will be in power much longer and that the opposition does not support this legislation. Nevertheless, it would not be wise for the judiciary to challenge the principle of parliamentary sovereignty. If a case comes before them, their role should be limited to issuing what is known as a ‘declaration of incompatibility’ under the Human Rights Act, setting out that the Bill is contrary to Convention rights. The alternative is a constitutional crisis.
Professor Mark Elliot, a distinguished Cambridge academic who used to advise the House of Lords Constitution Committee, has argued that the Bill is ‘parochial’ as it wrongly proceeds on the basis that the UK Parliament, because it is sovereign, can free itself from its international legal obligations.
As he notes, this is simply not true. Short of exiting the relevant treaties these obligations continue to exist in international law. As I suggested yesterday, the ultimate effect of the government’s approach could well be more cases at the European Court of Human Rights – potentially resulting in compensation claims from anyone who is wrongly removed. This would be a significant own goal.
The small boats crisis now appears to have completely destabilised the government. Despite the fact that, as Robert Jenrick acknowledged in his resignation letter, small boat arrivals have decreased by more than a third this year (partly down to a returns deal concluded with Albania), Sunak has to go further to win over the right of the party. Yet that is practically impossible in the time he has left in power. He will probably struggle with this Bill – and certainly could not get more radical legislation through parliament.
The unfortunate fact is that, in fixating on this unhappy policy, Rishi Sunak may define his legacy as a Prime Minister who damaged the rule of law, perhaps profoundly, while failing to even achieve his aim.
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