Rishi Sunak is pinning his hopes on emergency legislation, the Safety of Rwanda (Asylum and Immigration) Bill, to ‘Stop the Boats’. But within hours of the Bill’s publication yesterday, immigration minister Robert Jenrick walked out. Last month, home secretary, Suella Braverman, was fired. To lose one minister may be regarded as misfortune, but to lose two means something is up. What is going on?
At the heart of the attempt to ‘Stop the Boats’ lies a very simple problem. If this Bill is to succeed, it needs to correct every weakness that the Supreme Court identified when it rejected the government’s last attempt to legislate on this issue. Last month’s ruling was unanimous: judges said that the Rwanda scheme (under which asylum seekers would be sent to Rwanda to have their claims decided there) is unlawful. The Supreme Court decided that there were substantial grounds for believing that asylum seekers sent to Rwanda would face a real risk of ill-treatment as a result of ‘refoulement’ (being returned) to their country of origin. So, for Sunak’s latest scheme to work, this issue – and other things the Supreme Court took issue with – must be addressed.
Sunak’s new Bill only half deals with the Human Rights Act
The Bill’s attempt to deal with this is just to say ‘every decision-maker must conclusively treat the Republic of Rwanda as a safe country’. But that’s not enough to offset an active finding of fact by a court. You need to actively reverse the finding instead – or watch some future Supreme Court strike down your plan.
The Bill tries to get around this with what we call an ouster clause. These are clauses that stop courts reviewing government action. It is true that we’ve restored them and the courts recognise them – the most famous one is in the Bill of Rights 1688. But courts only recognise strongly drafted and unambiguous ouster clauses; this one is weak.
On the issue of refoulement, the Bill tries to get around this by including a ‘not withstanding’ clause. These are a bit new to us, having mostly been used in Canadian law. But in law, new means risky. A more comprehensive approach would be to take refoulement out of our law completely, but the government has opted against doing so.
Sunak’s new Bill only half deals with the Human Rights Act (HRA). Certain provisions are disapplied, although again, by ‘not withstanding’ clauses. But section 4 of the HRA is not. Section 4 allows a court to publicly shame an Act of Parliament by declaring it incompatible.
The Supreme Court struck down the last plan. But the elephant in the room is the European Court of Human Rights (ECHR). The Bill proposes blocking any ‘interim measure’ the ECHR tries to introduce. This is the power the ECHR gave itself which allowed it to blocked flights to Rwanda so far. All so good. But the Bill does nothing to block a full case brought before the court. Interim means ‘during proceedings’. If the ECHR’s process is a quick one, it can get from interim to full very quickly – and block flights, again.
But the real elephant in the room is Northern Ireland. The Windsor Framework means EU law – including EU immigration law – applies in Northern Ireland. So there is nothing to stop an EU Court (which is distinct from the ECHR) blocking the Bill. If this happens, what’s to stop boats diverting to Belfast – rather than Dover? Or, if someone lands in Dover and claims asylum in Northern Ireland, what will happen to them?
Robert Jenrick is right when he says, in his resignation letter, that we can fix these problems. We have a constitution uniquely empowered to do so. But if we keep compromising, we will not be able to. This Bill looks doomed.
