The Rwanda Bill: Ousting Accountability
The government today revealed its formal response to the Supreme Court judgment that dealt a serious blow to its Rwanda policy.
The Safety of Rwanda (Asylum and Immigration) Bill seeks to declare that Rwanda is, in fact, a safe country for asylum seekers. Of course the reality is that Parliament can make Rwanda a safe country in the same way that it can make the sky green or make me the all-time Premier League top goalscorer: it doesn’t change the facts on the ground.
Only a few hours after the announcement and it looks like this issue threatens to split the Tory party. The immigration minister, Robert Jenrick, has resigned citing concerns that the legislation does not go far enough. He follows in the footsteps of Suella Braverman who left the Home Office in disgrace, criticising the prime minister’s approach as she went.
Jenrick was worried that the legislation does not sufficiently limit “the opportunities for domestic and foreign courts to block or undermine the effectiveness of the policy” but the Bill, as it stands, is like nothing we have ever seen before when it comes to ousting the jurisdiction of the courts.
The Bill begins in clause two by stating that courts and tribunals “must conclusively treat the Republic of Rwanda as a safe country”. Clause three then builds upon this by disapplying the following sections of the Human Rights Act 1998:
section 2 (interpretation of Convention rights),
section 3 (interpretation of legislation), and
sections 6 to 9 (acts of public authorities)
Clause four seeks to disapply the Refugee Convention and clause five tells the courts not to have any regard to interim measure of the European Court of Human Rights.
By this point you get the picture: every legal impediment that the government has faced so far along the road of this ill-fated policy is something that this Bill seeks to oust in some way. It is almost amazing that Jenrick did not believe this was sufficient as it is hard to think of much more this Bill could do to avoid proper scrutiny from the courts. His specific concern is that it does not completely dismiss the European Convention on Human Rights and that is something that will present a shred of hope for asylum seekers facing deportation.
This is still the very early stages but what degree of success can we expect from the Safety of Rwanda (Asylum and Immigration) Bill?
For a start, it will really struggle to get through the House of Lords. Despite a majority for the government in that House, the Lords are not bound by Convention to approve this Bill and they will have serious concerns about the way that it seeks to fly in the face of common sense and the reasoned judgment of the Supreme Court. From a legal perspective, this novel attempt to oust the jurisdiction of the courts is totally unprecedented and any peer who cares about the rule of law will surely not approve it. The fact that it removes key legal protections from some of the most vulnerable people in the UK is just the icing on the cake at that stage.
Even if this Bill became law that would not stop legal challenges from being brought. To what extent would judges feel bound by this extensive ousting of their jurisdiction? Nothing like this has been seen before so it is hard to say with any degree of certainty but proceedings would likely find their way back to the Supreme Court.
The previous judgment, handed down only a few weeks ago, focused on international norms like the principle of non-refoulement and it is hard to see them ignoring that in a new case even under this new piece of legislation.
The government is continuing to try and make this unworkable policy work and is instead setting itself up for more embarrassing failures.