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After two years of wrangling, a bill allowing the UK government to transport to Rwanda some asylum seekers arriving in small boats across the Channel — one of the most egregious pieces of British legislation in recent years — is set to become law. Prime Minister Rishi Sunak’s admission that flights may still not start leaving for Rwanda before July highlights just how problematic this measure is. But the issue is not merely that this inhumane and hugely costly plan may not achieve its aim. The legal means the government has used to over-rule, in effect, a block by the UK Supreme Court creates a pernicious precedent for British democracy.
It is extraordinary for any government to become so in thrall to such a dubious scheme. There is no guarantee desperate migrants already willing to cross a hazardous sea lane in flimsy boats — five more, including a child, tragically died in the attempt on Tuesday — will be deterred by the slim chance of ending up in central Africa. To clear the way for flights to happen, the bill “disapplies” some parts of other UK and international law. That further smears the reputation of a country that prides itself on respect for the law and human rights.
Most disquieting, however, is that the government is legislating to declare that the facts are not what the courts found them to be. The Supreme Court unanimously found last November that Rwanda was not a safe third country for asylum seekers as there was a real risk they would be sent back to countries they had fled. The ruling depended not only on the European Convention on Human Rights, denigrated by many UK Tory MPs, but on even more broadly applied principles of international law including the UN Refugee Convention.
The government did attempt to change the facts. It upgraded its agreement with Kigali to a binding treaty and introduced safeguards including a stipulation that no asylum seeker would be removed from Rwanda except back to the UK. Rather than allowing judges to rule again, though, it has passed a law to say Rwanda is now safe and “every decision maker”, including courts and tribunals, must treat it as such. Legal challenges arguing Rwanda is an unsafe country are barred.
This is a very slippery slope. It creates a temptation for future governments, if thwarted by courts, to follow a similar route. Members of the House of Lords, which fought unsuccessfully to modify the bill, noted that parliament might similarly legislate to declare, say, that black is white, all dogs are cats or — more seriously — that someone acquitted of a criminal charge is guilty.
The bill is another example of post-2019 Conservative governments playing fast and loose with constitutional norms. It echoes the vilification of judges trying to uphold the law during Brexit. It is reminiscent, too, of assertions of sovereignty of parliament over “unelected” judges by rightwing governments in Hungary or Poland.
The act is not entirely bulletproof. Individuals can appeal on the basis that Rwanda is personally unsafe for them because of their individual circumstances, though the bar is high. Most significantly, some legal experts suggest there is scope for a broader constitutional challenge arguing that the act encroaches on the separation of powers and the role of the courts.
Those who hold UK democracy dear may hope such a challenge emerges, and succeeds. Britain’s political settlement has long rested on the premise that parliament is sovereign but accepts the courts’ role in holding it to account — and does not attempt to usurp that function. The Rwanda bill undermines that settlement. There is a danger that its precedent will endure even if an incoming Labour government, as pledged, quickly repeals this flawed statute.