AceNewsDesk – On Wednesday, the Government published the draft of the Safety of Rwanda (Asylum and Immigration) Draft Bill, the emergency legislation Rishi Sunak promised to get the Rwanda scheme back on track after it was derailed by the Supreme Court on November 15.

Ace Press News From Cutting Room Floor: Published: Dec.08: 2023: Conservative Home By Henry HillDecember 8, 2023: TELEGRAM Ace Daily News Link https://t.me/+PuI36tlDsM7GpOJe

This legislation was controversial even before anybody caught sight of it; only on Tuesday we examined the false claim by anonymous Home Office officials that “the government can’t legislate its way out of the Supreme Court judgement” at all.

Now that we do have the text, we can address two important questions. First, would the Bill, if enacted, succeed in its stated aim of eliminating the legal friction which has to date left the Rwanda scheme stalled on the runway? And second: to what extent are critics right to claim that it represents some dark new departure for British legislation, or even a challenge to the rule of law?

(The essentially political question of “Will it ever become law?” was dealt with by our Editor yesterday.)

Would it work?

As far as I (and those more learned than I that I’ve spoken to) can see, the short answer here is “Yes.”; the longer answer begins “But…”.

Most obviously, the Bill “gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country” (Clause 1(2)(b)), and stipulates that: “Every decision-maker must conclusively treat the Republic of Rwanda as a safe country” (Clause 2(1)).

This deals directly with the issue led the Supreme Court to decide against the Government in November: that although the scheme has been deemed legal in principle, it could not demonstrate that Rwanda was in reality sufficiently safe to send people there without breaching the UK’s international obligations. As a matter of domestic law – which is what the domestic courts rule on – Rwanda would be deemed safe.

The Bill also aims to restrict the scope for individual challenges to deportation decisions – essential, as we noted previously, if the scheme is ever to reliably see people sent to Rwanda and thus, in theory, create a credible deterrent.

It does not preclude such challenges altogether. However, it aims to restrict them to cases where the individual in question can convincingly demonstrate, “based on compelling evidence relating specifically to the person’s particular individual circumstances” (Clause 4(1)) that they would be at risk of harm in Rwanda.

This might seem confusing in light of Clause 2, which makes express provision that Rwanda be deemed a safe country. The explanation is that Clause 2 addresses general concerns about the operation of Kigali’s refugee policy, specifically the risk of refoulement – that refugees may be sent on to a country where they would suffer ill-treatment. This is made clear by Clause 2(4):

Clause 4 deals specifically with claims that the individual would face persecution in Rwanda itself, a much narrower basis for appeal. In theory, it would serve mainly to prevent the UK deporting to Rwanda refugees from Rwanda.

This is buttressed by the notwithstanding clauses. These are provisions which explicitly set aside legislation or other legal or international obligations that conflict with the Bill. The first aims to excise any basis for challenging a deportation decision save the specific grounds set out in Clause 4. This is Clause 2(5):

The second is Clause 3, which deals in detail with disapplying various provisions of the Human Rights Act 1998 to specific parts of the asylum process.

If these worked as intended, they would allow the courts to dispose of the great majority of individual challenges to deportation, and to do so efficiently.

Of course, there is no telling in advance what sport lawyers will make of this loophole, or whether it might afford judges opportunities to interpret the Bill so as to defeat its intended effect.

This may be what Robert Jenrick was dissatisfied with. But as barrister Harry Gillow points out, it’s not clear that such an ironclad Bill would have been feasible – at least not if you take seriously Kigali’s sudden insistence that it would pull out of a deal with breached the UK’s (not Rwanda’s) international obligations.

Finally, Clause 5 mandates that the courts “must not have regard to” any interim measure issued by the European Court of Human Rights when making a judgment, because per Clause 5(2): “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.” An approach nearly as restrictive is applied to domestic interim remedies too (Clause 4(3)-(7)).

Is it mad, bad, or dangerous?

In theory then, the Bill as written would, if passed, seem to do what’s necessary both to lift the general barrier to the Rwanda scheme (the Supreme Court’s decision that the country is unsafe) and the case-by-case friction which would otherwise risk rendering the scheme practically operable.

But there is another class of objection: that set out in this article by Professor Mark Elliott of the University of Cambridge, wherein he claims the Bill is “an affront to the separation of powers and the rule of law”. He even goes so far as to imply that it could potentially “be challenged on the ground that it is simply unconstitutional”, citing a judgment, Privacy International, of which have written before.

Addressing such arguments takes us into the realm of legal theory and arcana. But given the apparent stakes (“the rule of law” is in peril, after all), we shall examine two.

International law

Elliott argues that whatever Parliament’s right to make law for the United Kingdom, such legislation has no bearing on this country’s international obligations. As such, the Bill would be “unlawful in international law even if domestic courts are forced by the Bill to turn a blind eye to that legal fact.”

It is true that Parliament cannot unilaterally change international law. But under our constitution it can legitimately legislate contrary to international law, and such statute is supreme within the UK’s legal order. That is why (contra Lewis Goodall) Parliament is expressly able to pass laws that do not comply with the Human Rights Act, and thus why prisoners can’t vote.

As such, it is wrong to imply by appeal to “the rule of law” that attempting so to do is a breach of the UK’s constitution and norms. Per Lord Diplock, in his judgment on Salomon:

“If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty′s treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties…”

This is not to say that there aren’t risks to acting outside our international commitments. But those risks are diplomatic and political. The relationship of a sovereign state to international law is not like that of a citizen to the law of their country; that an international obligation is “binding” on the UK does not (and should not) grant it legal or moral equivalence with statute law.

Safety of Rwanda

Another objection is that the Government is by this Bill seeking to restrict the courts’ capacity as fact-finders and, as Lord Sumption put it last month, try to do the equivalent of declaring in law that black is white. There are a few counters to this.

First, Parliament could in fact do this. It might not be a good idea (Sumption called it “deeply discreditable”), but that doesn’t make it unconstitutional. Sumption himself has subsequently acknowledged this: “The courts will do what they’re told to, if they’re told in sufficiently clear terms. And this Bill is pretty clear.”

Second, as Michael Foran argues, this would not be the first time Parliament has legislated to substitute its will for a court’s capacity to find the facts: the Gender Recognition Act 2004 did the same thing. As he puts it, somewhat provocatively:

“Rwanda is safe in the same way that trans women with GRCs are women: it is deemed to be so by reference to a counterfactual declaration giving rise to interpretative obligations on courts.”

There is also a less confrontational argument advanced by Gillow. He suggests that the Bill is not simply decreeing an alternative interpretation to the facts the Supreme Court ruled on, but rather setting in law Parliament’s decision that Rwanda is safe “on the basis of the facts as now (including the binding MEDP treaty, not in place at the time of the UKSC judgment)”.

Conclusion

Were this Bill to pass in its current form, and were its exemptions and safeguards not subjected to too much creative interpretation in the courts, it would go a very long way toward making the Rwanda scheme operational. On that at least the Government seems correct, although its critics will note the second caveat is doing a lot of work.

Whether the approach taken – of trying to avoid a head-on collision with our international obligations by seeking to override them in specific cases – will prove effective, either here or in the long term, is an open question. But those insisting on an all-or-nothing approach to international law should be careful what they wish for. France recently straight-up ignored an ECHR ruling to deport a man with terror connections; stronger remedies are available.

The draft Safety of Rwanda Bill would probably be effective, and would certainly be constitutional

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