Examining the Impact of Rwanda’s Asylum Policy on the UK Constitution

by Sreeja Goduguchinta , first year L.L.B. student and student writer with the UCL Junior Lawyers Against Poverty Chapter

The Rwanda asylum policy was described by Steve Valdez-Symonds, Amnesty International’s Refugee and Migrant Rights Director, as ‘utterly immoral’, ‘wholly impractical’ and showing the lack of respect ministers had for ‘the law, courts and the country’s international agreements’. Now, just a week later, the House of Commons has passed the ‘Safety of Rwanda (Asylum and Immigration) Bill’ by a majority of 44. While the Bill itself remains a contentious topic, it is interesting to consider the wider political impact the Bill would have on the delicate balance of the UK constitution. Professor Mark Elliot has declared the Bill an ‘affront to the separation of powers and the rule of law’ whilst orthodox constitutionalists consider it permissible as Parliament is sovereign and has unlimited legislative powers. Regardless, it is undeniable that the recent Bill exposes the ambiguities within our political infrastructure; thus, its consequences will fundamentally change and define the relationship between the three branches of government as the limits of democracy are challenged.

Unsurprisingly, the Rwanda policy contradicts both the European Convention on Human Rights and the Refugee Convention, both of which are superior due to the UK’s position as a member party and the Human Rights Act 1998 forbidding any ‘public authority’ from breaching a ‘convention right’. Hence, in the Supreme Court judgement concerning the policy, it was declared unlawful specifically on the finding that Rwanda is an unsafe country, as the scheme did not comply with the UK’s international obligations to the aforementioned treaties.

The recent Bill attempts to circumvent not only this decision but the broader power of the judiciary from declaring the whole policy unlawful. Thus, under section 2(1) of the Bill, Parliament declares that ‘every decision-maker’, which includes the courts as per section 2(2)(b), must treat the Republic of Rwanda as a ‘safe country’. The Bill subsequently prohibits courts from considering judicial review or appeal in cases of deportation, specifically related to concerns over Rwanda’s safety, fair consideration for asylum, or potential violations of the agreement. Thus, through these ouster clauses, Parliament seeks to heavily limit the power of the courts in stopping or regulating the policy.

The doctrine of parliamentary sovereignty, which states that Parliament may make or unmake any laws unbounded by itself and other bodies, is a central tenet of our constitution. Parliament derives its power from popular vote as UK citizens elect MPs to represent their desires and opinions. Thus, it is often argued that Parliament must be sovereign to uphold the very principle of democracy itself. But surely the very essence of democracy demands that Parliament be restrained? Surely, in pursuit of a truly democratic, free, and fair state, Parliament must be forbidden from legislating on the freedom of the judiciary as it attempts to do so within the Bill?

Indeed, the courts have challenged the orthodox theory, namely through the conception of ‘constitutional statutes’, which have to be expressly repealed due to their significance, and their ability to declare legislation unlawful on grounds of incompatibility and procedural issues. Although English courts have stopped short of asserting they have the power to strike down legislation for substantive reasons, they have indeed considered it in Jackson and others v Her Majesty’s Attorney General, where Lord Hope stated that where legislation is so ‘absurd or so unacceptable’ that the ‘populace at large refuses to recognise it as law’, the courts should not either. However, in recent years, the courts have receded into their prescribed role as ‘authoritative interpreters’ of ‘Parliament’s will’ as described in R(Oceana) v Upper Tribunal(Immigration and Asylum Chamber). This is a far cry from their position in R (on the application of Privacy International) v Investigatory Powers Tribunal and others, where they challenged the unlimited nature of the powers of the legislature, arguing that it was beyond its scope to ‘determine the limits set by the rule of law’ concerning judicial review. In essence, there is a divorce from what the courts have asserted to be its theoretical powers and its ability to practically manifest them and challenge the sovereignty of Parliament.

It is thus questionable whether the courts will take a strong stance against the Bill. However, the increased exploitation of the supremacy of Parliament, especially regarding its ability to limit the judiciary’s powers, undoubtedly introduces a risky precedent. If Parliament can go so far as to legislate against the truth of a factual question of whether a country is safe and state that it may evade the jurisdiction of international tribunals, how far can it go? The original idea of parliamentary sovereignty, as conceived by Dicey, rested on the fact that ministers would be unlikely to legislate against the public interest to protect their careers. The power of courts could be chipped away in the meantime with little resistance, thereby steering UK politics further toward a similar trajectory as France and the US, where democracy is progressively destabilised through the manipulation of the constitution. This was demonstrated, for instance, by the enactment of the Texas Abortion Bill and President Macron’s enforcement of his pension reform scheme via special powers. Thus, the orthodox doctrine appears to have no safeguard save public defiance, which would essentially constitute a political upheaval. Regardless of what may happen, concern for the future of English courts seems wholly warranted.

Another important relationship to consider is that between Parliament and the executive. Tony Wright, former chair of the Public Administration Select Committee and the Reform of the House of Commons Committee, stated that because of the inherent governmental dominance in Parliament, the legislative process is so ‘firmly controlled’ that ‘serious scrutiny’ by party members is ‘discouraged’. It is argued that this statement does not fully encapsulate the nuance of the parliamentary process as, despite discipline being enforced by party whips, party members do rebel. This is evidenced by the fact that Boris Johnson fired 21 Tory MPs in his first week for voting against him.

In reality, however, the problems with elective dictatorship have never been made more apparent than by the recent Bill. James Cleverley, the Home Secretary, has not denied calling the Rwanda scheme ‘batshit’, but vehemently defended it in the House of Commons. Clearly, this is expected of him on the principle of cabinet collective responsibility. However, Damian Green, a conservative MP, despite declaring the plan the ‘most unconservative proposal’ he has ever seen as it undermines the rule of law, also voted for the bill in the name of being ‘loyal to the leadership’.

In fact, despite the contentious divisions present within the Conservative Party, there were no dissenting votes from members. They either abstained or voted in favour of the bill to protect the authority of the Prime Minister and avoid another election within the party or general election, ultimately granting it passage due to the Conservative Party’s majority. This forced coherence is often an important political tool to show party unanimity to increase public confidence, but should arguably be dropped if that would better represent the interests of the public in the context of particularly politically unpopular issues. The freedom afforded to MPs to express their opinion also serves as the sole safeguard against the inherent reality of the executive branch possessing a majority in the House of Commons, as within our constitutional framework, the Prime Minister is selected based on who can most effectively control Parliament. For the above reasons, the Bill exposes the issues concerning the separation of powers at the very heart of our constitution.

What can you do to help:

List of charities to donate to help asylum seekers: https://www.bigissue.com/news/social-justice/these-are-the-refugee-charities-in-the-uk/

Volunteering and donation to a charity seeking to help asylum seekers integrate/ build a life in the UK: https://www.refugeeroots.org.uk/ 

Donate/ fundraise for a charity that gives independent advice/guidance to asylum seekers: https://www.migranthelpuk.org/

Disclaimer: The views and opinions expressed are those of the author. They are for informational purposes only and do not reflect the official policy or position of UCL SPBC. 

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