Why the Rwanda Decision Was So Unexpected
Analysing the Supreme Court’s ruling against the government, Kaya Davies argues this showed surprising resistance by the Court to the current government’s war against the ECHR, with the government showing increasing resistance to such forms of accountability.
Picture by Simon Dawson for the Prime Minister, via Wikimedia Commons
This article was pitched prior to the handing down of the Rwanda Supreme Court appeal decision. It was planned to be a written defence of the European Convention on Human Rights (ECHR), against recent attacks by the Conservatives. The Illegal Migration Act, which received Royal Assent on 20th July, disapplies Section 3 of the Human Rights Act 1998 (HRA (1998)) in relation to the subjects of the act: refugees and trafficking victims. Section 3 of the HRA (1998) requires the law to be interpreted in a way that is compatible with the Convention rights, and is often said to secure Parliament’s intention that legislation generally be interpreted and applied in ways that accord with the UK’s international obligations under the ECHR. The Illegal Migration Act instead imports a statutory purpose ‘to prevent and deter unlawful migration’. Likewise, the Victim and Prisoners Bill, currently before Parliament, threatens to disapply Section 3 of the HRA (1998) in relation to certain prisoners. It is likely such provisions breach the ECHR. This is notwithstanding further provisions disapplying other sections of the HRA (1998); and, of course, substantive sections within each that are at significant risk of breaching the UK’s commitments under the ECHR.
It is clear that, despite the abandonment of the Bill of Rights, following extensive legislative scrutiny by the Joint Committee on Human Rights, the current Tory government remains set on infringing our international obligations, under a ‘take back control’ guise. The situation reeks of nationalism.
However, like pretty much any British media outlet, in light of the unexpected Supreme Court decision, any plans to write such an article have been diverted. The Supreme Court ruled, on Wednesday 15th November, that the government’s plan to send asylum seekers to Rwanda is unlawful. In so ruling, the Supreme Court thwarted the agreement between Rwanda and the UK, as it stood. Yet, placed in the context of the current government’s obsession with protection of its sovereignty, upholding an ideal of unilateral, inherently ‘British’, control of our laws and borders, the judgment should not be taken solely on its face. Rather, it represents remarkable resistance by a unanimous judiciary refusing to play ball with the government’s conceptualisation of the ideal legal order.
To understand why the decision handed down by the Supreme Court in the Rwanda appeal was so unexpected, it is essential to conceptualise the original Rwanda plan properly, within the remit of international law. The agreement made between Rwanda and the government was a memorandum of understanding (MoU). MoUs are not legally binding, they are statements of intent and cooperative agreement. The UK government’s payments and MoU would provide incentives for Rwanda to comply with the agreement – not substantial, enforceable obligations.
It was this that the Supreme Court held was too weak a basis to ensure compliance by Rwanda with its obligations towards asylum seekers, putting their safety at risk. This decision was made on the basis of detailed submissions made by the United Nations High Commissioner For Refugees, whose advocates have been praised for their presentations before the court regarding Rwanda’s non-compliance with its international obligations.
It was not unknown to the government that the MoU with Rwanda was not of sufficient strength to carry out the Rwanda agreement. In a prescient report made one year ago by the House of Lords Committee, concern was raised that the Government had concluded an agreement that appeared to be entirely unenforceable, a point that was recognised in the very text of the UK-Rwanda MoU. Within the same report, the House of Lords Committee stated that ‘agreements that raise fundamental questions about individual rights should not be entered into through an MoU, but through a formal treaty’. Since this was declared, the government could have converted the MoU into a treaty. They did not.
It is open to speculation as to why the government failed to facilitate the agreement fully – in accordance with guidance from the House of Lords Committee – as a legally binding treaty which would have ensured that the rights of those affected could be protected. What is clear, though, is that however the Rwanda agreement was technically constructed it was fit for the government’s narrative purposes. It is of no surprise that the government’s war against the ECHR was not to be confined to those isolated ‘specific issues’ addressed by legislation such as the Illegal Migration Act, and Victim and Prisoners Bill. Again, the case against the ECHR is steeped in nationalism, that same ‘take back control’ sentiment characteristic of the Conservatives in recent years.
Thus, the Rwanda agreement encapsulated by the MoU did not, and could not, have come into force, given it was of insufficient strength to carry out what it purported to do. However, the ordeal surrounding it enabled the government to make a spectacle of the will of Parliament being supposedly restricted by its international obligations under, specifically, the ECHR. When the European Court granted interim measures preventing the removal of asylum seekers from the UK to Rwanda in June 2022, Dominic Raab (at this point Deputy Prime Minister and Justice Secretary) was quick to criticise the jurisdiction of the Strasbourg court, telling the BBC that, “It is flawed that rule 39 orders from Strasbourg can have an injunctive effect, for example stopping those planes taking off. That’s something our bill of rights will address”.
What was so surprising is that this spectacle was not allowed to continue once the matter reached the Supreme Court. The current Supreme Court under Lord Reed, considered by many to be deferential to the government on policy matters, unanimously went against the government in more ways than one. While remarkable that the Court passed political judgments with regards to the substantive Rwanda policy, it is of further shock that the ECHR was mentioned only in passing. The Supreme Court was careful to not depend on the ECHR in its judgment. Instead, the Court referenced various other international law instruments which prohibit refoulement, including the UN Refugee Convention, the UN Convention against Torture, and the UN International Covenant on Civil and Political Rights, which have been given effect in UK national law. It even went so far as claiming the principle of non-refoulement exists as customary international law, a source of international law that is binding notwithstanding a state’s explicit consent. The not-so-subtle subtext to the judgment was that the UK leaving the ECHR would not make a difference to this decision.
That the government has such a vengeance against the HRA (1998) remains relevant politically. ‘Opting out’ of European human rights laws remain at the forefront of political discourse in the aftermath of the Rwanda decision, with David Cameron threatening to ‘get tough’ on Strasbourg judges who block the Rwanda plan. This only further proves the blind nationalism of the current government. Following the Rwanda appeal, if the government really does want to ‘take back control’ it must face the fact that our international obligations go far beyond the ECHR.
This is a challenge the current government has shown no qualms in taking on. In an immediate response to the Supreme Court’s ruling, Rishi Sunak threatened to embody the scheme in a revised treaty with Rwanda (to replace the current MoU), and to enact an emergency bill purporting Rwanda to be safe and to prevent further challenges under UK domestic law. James Cleverly has fulfilled the first steps in this plan, by signing a treaty with Rwandan foreign minister Vincent Biruta on 5th December. However, as a matter of practical reality, it is unclear how the government could, legally, resurrect the policy before the next general election, given the time constraints. While Cleverly has suggested that he has dealt with “the lordship’s concerns”, this massively understates the Supreme Court’s position. The Supreme Court did not have “concerns”, but ruled the agreement concretely unlawful based on an exhaustive consideration of that presented before it. The Rwanda agreement, however dressed up, cannot be made lawful in a rush.
Nonetheless, the Rwanda proceedings have served to highlight the flimsiness of the UK’s international obligations; the institutions of UK government can make insecure those international law instruments to which it has subscribed. A treaty has been negotiated and signed. To be enforceable under our dualist system, it now must be ratified. Part 2 of the Constitutional Reform and Governance Act 2010 puts on statutory footing Parliament’s opportunity to scrutinise treaties during the ratification process – a matter previously upheld by convention – but it does not require Parliament to scrutinise, debate or vote on them, which it rarely does. Perhaps part of this reason is that Parliament can only oppose, or tacitly accept, a treaty in full: it cannot amend treaties. This stands in strong contrast to many other countries where Parliamentary approval is at least required for certain defined categories of treaty, or some kind of Parliamentary scrutiny of treaties is incorporated into the treaty ratification process.
Likewise, domestically, an emergency bill could be enacted to prevent further challenges under UK law, under principles of Parliamentary sovereignty. Following Nick Vineall KC, Chair of the Bar, ‘if Parliament were to pass legislation the effect of which was to reverse a finding of fact made by a court of competent jurisdiction, that would raise profound and important questions about the respective role of the courts in countries that subscribe to the Rule of Law’. What would happen if Parliament were to truly, unequivocally, exclude the court, is unknown. The demonstrated intention of Parliament to do so should serve to remind us of the fragility of our own domestic constitutional order.
The Rwanda decision does not exist in a vacuum, but has potential to have severe ramifications as to our domestic constitution. With the signing of a new Rwanda treaty, the government has clearly demonstrated its will to erode those rights-protecting international obligations undertaken by the UK. The government seems increasingly willing to uphold itself against both international and domestic forms of judicial accountability.