Talking to Nick Robinson on the BBC’s Today programme this morning, Suella Braverman, the former Home Secretary, said she tries to be ‘honest’. When she labels the prime minister as ‘uncertain, weak, and lacking in leadership’, tells, stokes public fear by describing refugees crossing the Channel as an ‘invasion’, and claims that illegal immigration is an ‘existential challenge…to the west’, she does so in pursuit of candour. Her honesty is motivated by the hope of making British people aware of the danger asylum seekers pose to British life, and to help fulfil her ‘dream’ and ‘obsession’ of seeing flights containing refugees take off to Rwanda. Only the threat of deportation can solve her migrant crisis.
Rishi Sunak, the prime minister, may have sacked Braverman (although for comments over the Metropolitan Police and their policing of the Palestine protests), but she still holds the whip hand over the Conservative’s Rwanda policy. So long has been spent building the narrative that refugees crossing the Channel, despite being a mere fraction of the UK’s total immigration numbers, are a slow-motion crisis only resolvable by deportations to Rwanda, that the Conservatives cannot resile from it. Going forward is their only option. The fact that doing so will trash the rule of law and immutable constitutional norms is the price that must be paid.
After the Supreme Court ruled in November that the Rwanda policy was unlawful under the common law, human rights law and international law, to say nothing of domestic legislation, that should have been the court intoning the policy’s last rites. The seven justices had examined thousands of pages of evidence, heard hours of legal argument, and written an exhaustive judgment setting out their unanimous opinion: Rwanda is not a safe country. Its government is not yet able to guarantee the welfare of refugees. Having agreed a ‘memorandum of understanding’ with the UK government promising to treat asylum seekers with dignity and respect was not enough to offset the overwhelming evidence put before the court that Rwanda would not – or could not – keep asylum seekers safe.
The government’s response is to try and deny this reality. After James Cleverly, the new Home Secretary, flew to Rwanda earlier this week to sign a treaty that saw Rwanda reiterate the promises the Supreme Court could not trust the first time, the government has published its ‘Safety of Rwanda (Asylum and Immigration) Bill’. Front and centre is a statement from the Home Secretary acknowledging that he cannot claim the legislation it is ‘compatible with Convention rights’.
Under section 19 of the Human Rights Act (HRA), ministers are expected to confirm a bill’s compatibility with the ECHR. Since the HRA came into force, a minister has only been unable to do so on four occasions: three were prior to this Conservative government, and related to the section 28 on gay relationships, the House of Lords Reform Bill, and the Communications Bill on a question of free speech (which the ECtHR later upheld). Aileen Kavanagh, in The Collaborative Constitution, observes that the statement, as it did with the Communications Bill, can serve a useful constitutional function. It can carve out a route for the three branches of government to collaborate on the meaning and interpretation of rights.
But on this occasion, it is the equivalent of the government saying ‘this policy breaches human rights, we know this, and we do not care’. Reading beyond this makes it abundantly clear why the government was not able to make a section 19 declaration. At section 2, the bill says it is the ‘judgement of Parliament that the Republic of Rwanda is a safe country’ and that ‘every decision-maker must conclusively treat the Republic of Rwanda as a safe country’. Any court reviewing the case of a person fearing removal to Rwanda ‘must not consider…any complaint that…Rwanda will not act in accordance with the Rwanda Treaty’. Later on, it prohibits the courts from considering any interim rulings from Strasbourg (which have previously been used to delay flights to Rwanda), leaving it up to the executive alone.
All of this directly contradicts the Supreme Court’s Rwanda judgment. In AAA v Secretary of State for the Home Dept, the Court accepted that a deportation policy could be lawful, and that Rwanda could be a suitable destination in the future. But for it to be so, it had to first practise what the memorandum of understanding preached. The government wants to brush these findings aside, ordering the courts to find that Rwanda will do as it promises and to ignore the overwhelming evidence to the contrary.
This is constitutionally novel, to put it mildly. The government is trying to order the courts to hold that ‘left’ means ‘right’ and that ‘up’ means ‘down’. No British government or monarch has ever tried to order a court to make findings of fact in this way. It disregards the court’s constitutional role as arbiters of fact, and subverts the separation of powers that governs and helps maintain the relationship between the executive, the legislature, and the judiciary. Couple this with the bill’s provisions neutering the protection of s.3 of the Human Rights Act, which requires courts to interpret legislation compatibly with Convention rights ‘so far as it is possible to do so’, and what is constitutionally novel becomes constitutionally outrageous.
Every claimant is forbidden from contesting their removal on the basis that Rwanda is generally unsafe. The fact that Rwanda regularly refoules, mistreats and persecutes asylum seekers must be disregarded. Instead, a claimant may do so only on the basis that it is specifically unsafe to them. For instance, the Rwandan refugees in the UK who have fled persecution in Rwanda may be able to argue that they face specific risks in Rwanda that other refugees do not. It may be that this provides a route out for the Supreme Court, accepting that this provision lets the courts stop deportations to Rwanda on a case-by-case basis and so doesn’t fundamentally alter the constitution’s balance of power. But this would keep the reality denying legislation on the statute books, and so would still force the courts to accept that, on some level, Rwanda is ‘safe’. Should any refugee be deported to Rwanda, the risk of refoulement would still be a live one. Parliament would just have thrown a blanket over it and told the courts not to peep.
Orthodoxy holds that Parliament rules supreme over the British constitution. There is nothing Parliament cannot legislate on, provided it is clear about what it is doing. The Rwanda Bill makes the government’s intentions perfectly clear. It wants refugees on planes to Rwanda, and it wants them on planes now. If Parliament gets behind this, and if the House of Lords somehow approve it, it will stretch this orthodoxy to breaking point. In past decisions, the Supreme Court has hinted that there may be a limit to parliamentary sovereignty, musing about a hypothetical where Parliament refuses to respect the ‘proceedings and decisions of the courts’ or blocks access to the courts. If there is such a limit, we might be about to find out.
