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Opinion

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

18 Dec 2023 5 minute read
Prime Minister Rishi Sunak – Leon Neal

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 Actthe Asylum and Immigration Appeals Actthe 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.

James Cleverly, the UK home secretary, agrees a new treaty with Rwandan minister of foreign affairs, Vincent Biruta. Ben Birchall/PA images

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
The Conversation


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Fi yn unig
Fi yn unig
2 months ago

This why this so called ‘government’ MUST be over otherwise, WE are. Wales and Scotland cannot ride this insanity bus any longer and our respective governments must make a stand on the threat to withdraw us from the ECHR alone but also our other internationally agreed commitments. Our countries did not vote for this or them. Sadly for England, it did BUT England still does not have to stand for it and should not.

Fi yn unig
Fi yn unig
2 months ago
Reply to  Fi yn unig

This IS why.

Steve A Duggan
Steve A Duggan
2 months ago

Delusional, but then that’s the current Tory party for you. They are desperate to get as many people in the air and deported as possible believing it may prevent their crushing at the next GE. They are so blinkered they just don’t see this is not a major concern for the majority of the voting public. Tories – ‘it will not save you !’ They are wasting time and money that could be better spent supporting people who are cold and hungry this winter. As an independent country we could introduce laws to try and prevent this sort of BS… Read more »

Jeff
Jeff
2 months ago

They wont stop with this law. They are already targeting unions, they attack lawyers, they attack protest rights, it wont stop until they are voted back to the Stone Age. There must be no viable Conservative Party after the next GE. Then we need to do the same with the Welsh Cons.

Ernie The Smallholder
Ernie The Smallholder
2 months ago

The fact is THE UK HAS NO WRITTEN CONSTITUTION.

If a UK government begins to override courts/laws of human rights and states declarations in law that are simply not true by stating an untruth, then it becomes a regime of dictate by decree.

It would be declared as unconstitutional to liberal democratic standards.
The UK would then be conflicted and then effectively be unworkable.

It also means that the Welsh and Scottish parliaments would have no other choice but to declare that our countries as independent and then to adapt our own written constitutions.

Richard Davies
Richard Davies
2 months ago

The principle that no one is above the law is a myth as there is (at least) one person in the uk that is above the law – the monarch.

This fact alone is a reason for the abolition of the monarchy!

Steve Woods
Steve Woods
2 months ago

Correction: the Untied Kingdom has no *codified* constitution, unlike other countries, i.e. a single document where all major rules applicable to the country’s governance are collated.

These are spread across centuries of statute, plus legal precedent and custom, the latter relying heavily on the ‘good chaps’ principle.

Dai Ponty
Dai Ponty
2 months ago

This is another crisis added by the Tories since 2010 they have caused crisis after crisis after crises when my relatives from the South of England asked me a Question i Replied I AM WELSH CELT AND WANT TO BE PART OF THE EUROPEAN FAMILY ie The E U not British their jaws dropped to the floor

Elen Wade
Elen Wade
2 months ago
Reply to  Dai Ponty
Dai Ponty
Dai Ponty
2 months ago
Reply to  Elen Wade

Still not as Bad as the moronic Tory party which you support

Mandi A
Mandi A
2 months ago

India’s Modi has just red-carded 141 opposition MPs, watch this space…

Jonathan Edwards
Jonathan Edwards
2 months ago

C’mon Wales lets get a Wales Constitution (via a Convention). Dont let’s wait for a UK on

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