How the bill to declare Rwanda a ‘safe’ country for refugees could lead to a constitutional crisis

Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor University

Rishi Sunak has had a small win in the ongoing saga of the UK government’s plan to deport asylum seekers to Rwanda. The second reading of the safety of Rwanda (asylum and immigration) bill has passed the Commons, despite rightwing Conservative MPs abstaining.

This bill has been proposed as a way to effectively defy the UK Supreme Court’s ruling that the Rwanda plan was unlawful. The court found that Rwanda was not a “safe” country to send refugees, because there could be a risk of individuals being returned to their country of origin, where they may suffer ill treatment.

This is prohibited under international law, including the European convention on human rights and the UN refugee convention. It is also enshrined in domestic UK law through the Human Rights Act, the Asylum and Immigration Appeals Act, the Nationality, Immigration and Asylum Act and the Asylum and Immigration (Treatment of Claimants etc) Act.

The government has now introduced a revised treaty with Rwanda, as well this emergency legislation which would declare the country to be safe and limit further court challenges.

Why does the government think it can ‘overrule’ the courts?

At the centre of these developments is the issue of whether Rwanda is a safe country, as well as who should answer that question, the government or the courts.

This goes to the centre of the UK’s constitutional framework. The bill’s existence depends on the principle of parliamentary sovereignty. This means that parliament can pass any law, and that its lawmaking authority cannot be challenged.

Hypothetically, if the government introduced a bill saying the Earth was flat, and that was passed by parliament, that would become law, but would not change reality. In the same sense, introducing the Rwanda bill does not, in itself, change the reality on the ground.

The government, however, has agreed a new treaty with Rwanda, which it argues does materially change the situation and addresses the court’s concerns. The home secretary has stated that Rwanda has made “clear commitments” to the safety of the people who will go there.

Also, under the new agreement, Rwanda will set up an appeal body (composed of judges of mixed nationalities) where refused asylum claims can be reviewed.

Constitutional principles and the rule of law

As the UK does not have a written constitution, addressing the constitutionality of the government’s actions depends on a broad range of sources, including principles defined in common law.

These Rwanda developments have called into question the government’s commitment to the rule of law, the principle that no one is above the law, including the government.

The bill does allow for individual cases where a court could decide, based on compelling evidence, that it would be unsafe to send someone to Rwanda (for example, if they were pregnant or had rare medical conditions).

However, it effectively “overrules” the court’s previous decision, and prevents domestic courts from reconsidering whether Rwanda is generally safe. It is difficult to see how these proposals respect the rule of law.

There is also the issue of separation of powers. The UK theoretically has a system of checks and balance, whereby parliament, government and judges should limit and keep each other in check.

Parliament can make any law it wishes and the courts must dutifully apply it. Similarly, government must respect, preserve and not interfere with judicial independence. Such tensions arose during Brexit litigation, but the decision of the court upheld the sovereignty of parliament.

What is different about the Rwanda proposals is that we are in the territory where parliament could pass something that is so contentious as to be unconstitutional.

Possible constitutional crisis

There is precedent for parliament passing legislation to reverse the effect of a court decision.

In 1965 parliament passed the War Damage Act that nullified a court decision regarding compensation for the destruction of oil fields in Burma. While initially the court found that the proprietor should be compensated from public funds, legislation that came later retrospectively limited the government’s financial liability for damage caused during war.

With the Rwanda bill, much broader rule of law and international obligation issues are also engaged. Some have argued that the UK may now be heading for an unprecedented constitutional crisis, particularly if the government amends the bill to impose more draconian measures that would limit judicial oversight.

If the government introduced these kind of measures, judges have previously warned that it is “ultimately for the courts, not the legislature, to determine the limits set by the rule of law”.

What happens next?

Much of what happens next rests on amendments to the draft law – for example, whether the bill will command support in the House of Lords – as well as whether the prime minister is able to unify splits within his party.

The bill also stops short of disapplying the European convention on human rights. It is still possible, then, that the bill could face legal challenges at the European court of human rights, which can determine whether the law is consistent with the UK’s international human rights obligations.

Any attempts to further limit judicial oversight will see the UK potentially stray into unprecedented territory surrounding the rule of law. This could run the risk of forcing courts to do the previously unthinkable in striking down an act of parliament as unconstitutional.

This article was first published on The Conversation