Introduction
In late 2023, the UK Supreme Court (UKSC) handed down their judgment in the case of R (SAA) v Secretary of State for the Home Department. In a unanimous judgment, the UKSC held that the Home Secretary’s policy that certain people claiming asylum in the United Kingdom should not have their claims considered here but should instead be sent to Rwanda in order to claim asylum there was unlawful. The UKSC upheld the Court of Appeal’s ruling that there were substantial grounds for believing that there were real risks that asylum claims would not be properly determined by the Rwandan authorities, which in turn could lead to refoulement (return) of refugees to their countries of origin in breach of international law. The UKSC highlighted numerous problems in Rwanda including – issues with legal representation for asylum seekers and the independence of Rwanda’s legal system more generally, a high rate of rejection of asylum claims from known conflict zones and a poor understanding of the obligations in the Refugee Convention. As a result, the UKSC concluded it was not safe or lawful, at this time, to remove asylum seekers from the UK to Rwanda.
In response, the Government introduced emergency legislation, the Safety of Rwanda (Asylum and Immigration) Bill, which seeks to declare that Rwanda is a safe country, to disapply human rights law from subjects of the policy and override domestic and international legal provisions which would prohibit the UK from sending asylum seekers to Rwanda. In this post, I want to take a look at some of the wider consequences of this extraordinary draft legislation.
The Rwanda bill – a constitutional tipping point?
If this legislation passes into law, it could be a turning point in UK constitutional law which could call into question the sovereignty of parliament. To explain, let’s clarify what the legislation is doing. The Government is writing a demonstrably false statement, that Rwanda is a safe country to receive asylum seekers, into law. Writing legal fictions into law, as Adam Tucker expertly explains, is not actually that unusual. What is unusual is that this falsehood contradicts a clear finding of fact made by the highest court in the land mere weeks ago, forcing all courts to treat Rwanda as a safe country, even though the UKSC concluded it wasn’t. It also prevents the courts from hearing complaints about the risk of refoulement from Rwanda and removes basic fundamental rights protections from people subject to this policy. In doing so, it exposes some of the most vulnerable people, people fleeing war and persecution, to the risk that they will be sent back to the places they fled and to serious, life-threatening, human rights violations.
The UK constitution is supposed to be built on two pillars, parliamentary sovereignty and the rule of law, this legislation precariously balances on one – parliamentary sovereignty – while the other crumbles beneath it. Key elements of the rule or law – abidance by international law, equality before the law, respect for fundamental rights, guarantees of access to the courts – are all set aside by the legislation. It draws into conflict the two fundamental principles that underpin the constitution – adherence to parliamentary sovereignty and adherence to the rule of law. Such conflicts seldom happen for good reason. Lesley Stephen once posed a famous hypothetical question in constitutional law – what would happen if Parliament passed a law that all blue-eyed babies should be murdered? Dicey’s answer was that Parliament had the power to do this but “legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it”. This encapsulates the duality of parliamentary sovereignty. The orthodox understanding is that Parliament’s power is in principle unlimited, but in reality, the political constraints on it are supposed to offer a safeguard against Parliament doing such unconscionable things. The blue-eyed babies are supposed to rest easy because political constraints on legislative action ensure a law requiring their murder would never be passed. In a nutshell, just because Parliament has the power doesn’t mean it should (or could) use it. Yet in this case, the Government is dangerously close to using Parliament’s power in exactly such a way by overriding key rule of law protections and enacting dangerous legal fictions.
Many commentators have argued that there is a tipping point in the constitution at which the courts will not uphold parliamentary sovereignty. Mark Elliott has argued there is a fundamental core of constitutional values that if Parliament tried to override, would test the courts’ commitment to parliamentary sovereignty. Lady Hale specifically noted in Jackson v AG that “The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny”. This is exactly what the Rwanda bill is seeking to do, subvert the rule of law, remove fundamental rights protections and prevent judicial scrutiny of claims made by people subject to the Rwanda policy. The Rwanda Bill is perhaps the closest we have ever come to this hypothetical tipping point. It is an act of constitutional brinksmanship that risks forcing the judiciary’s hand, pushing them toward a rejection of parliamentary sovereignty. I am dubious of whether the courts would ever go so far, but either way – if the legislation passes and is accepted by the courts or they reject it introducing some form of strong constitutional review – the UK constitution would never be the same again. The advent of a strong power of constitutional review, akin to that of US federal courts, would be a constitutional earthquake. Alternatively, acceptance of the legislation by the courts would herald a new era of parliamentary (and executive) power and barring a new constitutional settlement, any prospect of the courts curtailing the excesses of a renegade parliament would be firmly set aside. Yet there is still hope that neither of these situations will come to pass. The political constraints on parliamentary sovereignty may yet have a champion in the House of Lords, to which we now turn our attention.
A damaging showdown with the House of Lords
At the time of writing, the bill has passed its third reading in the House of Commons and is at committee stage in the House of Lords. The bill is facing significant opposition in the Lords, even from Conservative Party peers. Jeff King wrote an excellent post on the prospects and propriety of the House of Lords rejecting the bill. It seems highly likely that the Lords will amend the bill and that the Commons will, in turn, reject those amendments, provoking what could be an extremely damaging confrontation for all involved. The newspapers are already launching personal attacks on peersand equating opposition to the bill with supporting criminal gangs and opposing the “will of the people”. The peers in the House of Lords seem destined for a similar fate to the Supreme Court judges labelled enemies of the people after the Miller judgment, further victims of a toxic and facile political discourse that vilifies people for performing their constitutional duties.
The Government meanwhile has backed itself into a corner with this legislation and has very limited room for manoeuvre. The Salisbury-Addison constitutional convention, under which the Lords should not seek to prevent the Government from implementing manifesto pledges in legislation, will be of no use to the Government because the policy was not part of the Government’s manifesto. While legislation can be passed in the face of opposition from the Lords under the Parliament Acts, that is unlikely to be of any direct consequence in this case for several reasons. Firstly, because the Government is desperate to pass this legislation quickly to show it is acting on immigration before the next general election (pencilled in for the end of this year). Secondly, because if the Lords delayed the legislation for a year (as permitted by the Parliament Acts), the current Government could be out of power and the legislation dead in the water. Finally, because the Parliament Acts are hardly ever used in practice. Dr Alice Lilly provides an excellent explainer here, but the Parliament Acts have only been used a handful of times in over 70 years. The real power of the Parliament Acts lies in the threat of their use, rather than their actual use and in this case, the circumstances render any Government threats completely empty.
All of this means that the Government will have to compromise on some of the amendments with the Lords or drop the legislation entirely. Neither option is great for the Government. A central problem is that it is difficult to see what could be meaningfully changed in the legislation (e.g. reversing the proposed disapplication of human rights law to the policy) without fundamentally undermining what the Government is trying to achieve through the legislation. The alternative to compromising is dropping the legislation entirely, which would be extremely damaging for the Government and perhaps even fatal for Rishi Sunak’s premiership.
The international fallout
The final point to discuss is the impact the legislation may have on the UK’s international reputation. In order to function effectively on the international stage, States must be trustworthy and adhere to the agreements they make with other states. Respect for the rule of law does not end at a State’s borders, it also requires adherence to the State’s obligations in international law. This bill, however, tries to render the European Convention on Human Rights inapplicable to the Rwanda scheme domestically and claims that the validity of the Act is unaffected by international law. That may be strictly true as a matter of domestic law, but that argument does not wash internationally. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty obligation. The UK is still bound by the UN Convention against Torture, the Anti-Trafficking Convention, Refugee Convention and the European Convention on Human Rights, all of the treaties it seeks to so set aside to implement this policy (clause 1(6). If, as the UKSC held, the UK is at risk of breaching these international obligations by pursuing this policy, a price will still have to be paid for this action. Whether that price is a legal one, before the European Court of Human Rights or another international body, or a political one in the UK’s international diplomatic endeavours remains to be seen. This government is sadly progressing from breaking international law in “specific and limited” ways to overt and sinister ways. It is already facing an inter-state challenge from the Irish Government before the ECtHR for another piece of legislation that flies in the face of human rights law, the Rwanda legislation may be destined for a similar fate. At a time when the global rules-based order is under unprecedented strain, with States waging wars of aggression, defunding UN agencies and ignoring the law of armed conflict, we should question whether the UK should be joining in by tearing up the Refugee Convention and ignoring its obligations under international.
Conclusion
The UK Government seems to have bet the farm on this extremely divisive legislation, engaging in the type of constitutional brinksmanship with the other arms of government that we have not seen since the travails of Brexit. It poses a significant threat to the rule of law, the UK’s international reputation and potentially even parliamentary sovereignty itself. At this point it is difficult to parse. The Rwanda Bill could be one of the most constitutionally consequential pieces of legislation the UK has produced in decades, or it could be booted into the long grass by the House of Lords, a useful teaching aid for professors, a cautionary tale on the limits (or not) of parliamentary sovereignty. In the coming weeks will see whether the past was alterable and Rwanda was always a safe country.
Stuart Wallace.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.