The Rwanda Act: a constitutional crisis?

This was first published by New Law Journal on 3 May 2024. 

 

There are ‘ousters’ and there are ‘ousters’. I am referring, of course, to judicial ousters enacted by Parliament which seek to restrict judicial review of decisions by the executive.

My colleague Nick Wrightson wrote last year (‘Lunges, parries & the ouster clause’, 173 NLJ 8036, p17) that under our constitution, Acts of Parliament are supreme and Parliament can curtail the jurisdiction of the courts if it so chooses. On a number of previous occasions—for example, R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22, [2019] 4 All ER 1—such ousters failed because the courts held that such a clause will not protect a decision that is legally invalid, except by the most clear and express words. These examples illustrate what Mr Wrightson referred to as a ‘constitutional parry’. As he observed, Parliament has subsequently avoided this by more explicit language, such as in s 2 of the Judicial Review and Courts Act 2022, which expressly prevents judicial review of permission to appeal decisions of the Upper Tribunal, even if an error of law has been made in reaching its decision.

However, an ouster which appears to violate fundamental rights, however explicit, is arguably different and would likely be subject to much closer scrutiny by the courts. This is the scenario described by Mr Wrightson as the possibility of the courts moving from a ‘constitutional parry’ to a ‘constitutional lunge’. The recently enacted Safety of Rwanda (Asylum and Immigration) Act 2024 (the Rwanda Act) raises just such a possibility.

The Act & the treaty with Rwanda

The key provision is s 1(2)(b) of the Rwanda Act, which asserts that the Act ‘…gives effect to the judgment of Parliament that the Republic of Rwanda is a safe country’, enabling the removal of persons to Rwanda under the Immigration Acts.

Section 1(5)(a) defines a ‘safe country’ as one to which persons may be removed in compliance with all of the United Kingdom’s obligations under international law that are relevant to that person’s treatment there. Section 2(1) then provides that every decision-maker must conclusively treat the Republic of Rwanda as a safe country. As ‘belt and braces’, s 2(3) then provides that a court or tribunal must not consider a review or appeal brought on the grounds that Rwanda is not a safe country. Section 4 of the Act only allows the courts to rule on evidence that Rwanda is not a safe country if there is compelling evidence relating specifically to the person’s particular individual circumstances.

These statutory provisions sit alongside a treaty with Rwanda, which is intended to ensure that Rwanda is indeed a safe country for the purposes of asylum seekers being removed there. It includes an explicit obligation that no person sent to Rwanda will be removed to any other country, except back to the United Kingdom at its request. It also provides for a system to process asylum claims with safeguards such as an independent monitoring committee, etc.

 

The Supreme Court judgment

All this is designed to address a Supreme Court judgment of 15 November 2023 relating to asylum decisions taken in summer 2022, which unanimously held that Rwanda was not a safe country for the purposes of Art 3 of the European Convention on Human Rights (ECHR) and other international conventions such as the Refugee Convention, to which the UK is a party. Among other things, the Supreme Court relied heavily on evidence from the UN Refugee Agency (UNHCR), which found serious and systemic defects in Rwanda’s procedures and institutions for processing asylum claims, including the lack of independence of the judiciary from the government in politically sensitive cases, the high rate of rejection of asylum claims from known conflict zones such as Afghanistan and Syria, and the apparent inadequacy of the Rwandan government’s understanding of the requirements of the Refugee Convention. There needed to be a change of attitudes, and effective training and monitoring.

 

Is Rwanda now a safe third country in light of the treaty with Rwanda?

The argument to the contrary is that the defects identified by the Supreme Court were systemic, meaning that it will take some time to resolve them. The Act is therefore wrong to declare that Rwanda ‘is’ safe and must be conclusively treated as such, regardless of whether Rwanda is in fact a safe country. In addition, an updated assessment of Rwanda by UNHCR in January 2024 stated that there had not been the necessary improvements in asylum adjudications to overcome the concerns it expressed in evidence to the Supreme Court. The treaty with Rwanda, signed after the Supreme Court judgement, did not—and could not— deal with systemic defects.

 

Is the judicial ouster therefore excessive?

The case for the defence deserves to be given weight. The government argue that Parliament, with its elected House of Commons, is merely acting in its sovereign power to solve a real crisis in the Channel, where people smugglers are exploiting vulnerable individuals for large sums of money, putting their lives in danger and enabling them to arrive illegally in the UK instead of using safe and legal routes. It is the government and not the courts who is accountable for this to the public, and parliamentary sovereignty must therefore have the final say.

The judicial ouster is therefore defensible in the public interest because Rwanda has provided sufficient guarantees. Allowing additional judicial scrutiny would clog up our courts, delay removal and allow this evil trade to continue. The Act will therefore deter the people smugglers, and those they exploit, from continuing to cross the Channel in unseaworthy small boats—all this while allowing claims based on individual circumstances where there is compelling evidence that Art 3 is engaged.

 

The constitutional law implications

This judicial ouster is, however, unusual because it prevents scrutiny in our courts of an issue of fact—ie, the safety of Rwanda— on which the Supreme Court disagreed on the basis of extensive evidence which the UNHCR considers remains valid in 2024. Moreover, it arises in the context of Art 3 of the ECHR, which prevents removal to another country where there is a real risk of mistreatment. Being one of the few Convention rights from which no state can derogate and which allows for no balancing of competing interests, this is an ECHR obligation with which successive governments have always complied, in line with rulings of the courts both here and in Strasbourg.

The government’s critics would say that the Rwanda Act has the potential to overturn that longstanding position because of the risks involved in not allowing future judicial scrutiny of whether Rwanda is, generally, a safe country.

 

How will our courts react?

So how is this tension in the separation of powers likely to unfold in practice? Will the courts make a ‘constitutional lunge’ and what would that look like?

One possible outcome short of this is that the courts could, as in the past, carry out a ‘constitutional parry’ by interpreting s 4 of the Act so as to allow many more claims, based on individual circumstances, than the government has anticipated, having regard to the safety of Rwanda for each individual. This narrowing of the extent of the judicial ouster would, however, be a strained interpretation and contrary to the express wording of the Act, especially s 4(2), which prevents the courts from considering the risk of refoulement even in claims based on individual circumstances. So it is not a likely scenario.

What about a ‘constitutional lunge’? Is there a risk, as some have suggested, that the Supreme Court might strike down the Act as ‘unconstitutional’? If there is any currently foreseeable context in which this question is likely to be answered, it is the Rwanda Act, given the scope of the ouster and the Art 3 rights involved. This is unprecedented territory. We do not have a written constitution or a Constitutional Court. But the separation of powers and compliance with the rule of law are clearly an integral part of our unwritten constitution.

The argument that the Supreme Court would, in an extreme type of case,
be prepared to strike down primary legislation was put by some of our senior judiciary in R (on the application of Jackson) v A-G [2005] UKHL 56, [2005] 4 All ER 1253. For example, Lord Steyn at para [102] suggested that the supremacy of Parliament was a concept created by the judges and ‘…it is not unthinkable that circumstances could arise where the courts may have to qualify [it]’.

In his book The Rule of Law (2011), Lord Bingham disagreed, saying that ‘…the principle of parliamentary sovereignty has been recognised as fundamental in this country, not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system’. He goes on to cite Professor Jeffrey Goldsworthy, who says that if the judges’ word is final rather than Parliament’s, it ‘…would amount to a massive transfer of political power from Parliament to judges. Moreover, it would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than brought about democratically by parliamentary enactment or popular referendum’ (Sovereignty of Parliament (1999)).

It seems unlikely the Supreme Court would be prepared to take that
extraordinary step, particularly when there is another far less controversial remedy available to it. Although the Rwanda Act disapplies various provisions of the Human Rights Act 1998, it does not disapply s 4 (declarations of incompatibility). This was necessary in order to be able to argue that the Act complies with the requirement in Art 13 of the ECHR to provide an effective remedy. Whether it is an ‘effective remedy’ is still subject to argument and debate. But it is undoubtedly an inducement to
our courts to invoke s 4 instead of doing anything more extreme. As we know, these declarations are not binding on the government and do not affect the operation or validity of domestic legislation. It would offload the problem to Strasbourg.

 

A Rule 39 indication of an interim measure?

In such circumstances, it is possible that the Strasbourg Court would give a ‘Rule 39 indication’, effectively an injunction preventing removal. It would do so only if there were an ‘imminent risk of irreparable harm to a Convention right (Practice Direction 28 March 2024). In that event, Ministers would have to decide whether to comply with it, and there is disagreement in academic circles as to whether a Rule 39 is legally binding. But successive UK governments have taken the view that as a matter of policy they will always comply with them, and have always done so, except in very isolated circumstances such as a conflict with another international law obligation (Al-Sadoon and Mufdhi v United Kingdom, Application No 61498/08, judgment of 2 March 2010).

In the Rwanda context, and in a General Election year, there would be political pressure from certain corners not to comply with a Rule 39. Whatever the government’s decision, if it comes to that, the thorny debate about the UK’s continued membership of the ECHR will intensify. This is where the real battleground will lie in the months ahead.

 

Further information

If you have any questions regarding this blog, please contact Lord Carter of Haslemere CB in our Public Law team. 

 

ABOUT THE AUTHOR

Lord Carter of Haslemere CB (Harry Carter) is a barrister who joined the Government Legal Service as a Home Office lawyer in 1989, becoming Deputy Legal Adviser to the Department in 2009. He was General Counsel in No 10 from 2016-2023.