Constitutional Issues Raised from the Conservative Government's Legislative Response

Gesang: In the context of the UK parliamentary elections, attention has been diverted from the Sunak government's legacy. Yet, their immigration policy has left a mark on the British justice system and may serve as an inspiration for right-wing coalitions across Europe. It is therefore worthwhile to understand the Sunak government's Rwanda policy in more detail. We are very happy to have Peter Leyland, Professor of Public Law from the School of Law, Gender and Media at SOAS, University of London with us, to explain it.

Professor Leyland, what exactly did the UK Supreme Court's 'Rwanda case' entail? What are the connections to international law?

Leyland: Thank you for having me. The Rwanda case itself was a final appeal before the UK Supreme Court challenging aspects of the government's so called 'Rwanda' policy which would have allowed asylum seekers to have their claims considered in Rwanda rather than the UK. The CPIN [Country Policy and Information Notes] rules used by the immigration service had incorrectly advised that there are no substantial grounds for believing that a person, if relocated to Rwanda, would face a real risk of treatment that is likely to be contrary to Article 3 ECHR by virtue of refoulement shortcomings in the asylum process.

The principle of non-refoulement, established under the 1951 UN convention and its protocol, requires that asylum seekers are not returned to a country where their life or freedom will be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. In Soering v United Kingdom the European Court of Human Rights further decided that a state has an obligation not to remove persons to other states where there are substantial grounds for believing that they would be at risk of such treatment. However, non-refoulment is not just a principle from international law. In the UK, it has domestic effect through the Human Rights Act of 1998, which give domestic effect to the ECHR.

Consequently, several asylum seekers were challenging inadmissibility and removal decisions which would be determined in Rwanda and not in the UK. The Supreme Court found the application of the policy to be defective because the evidence relating to the prospect of ill treatment had not been correctly assessed. The UK government relied on assurances from the Rwandan government, but in the past, there had already been evidence of serious human rights breaches in similar contexts. UK ministers were briefed on this but chose to overlook it. It was not a question of whether the Supreme Court was entitled to reach a particular conclusion, but whether the court assesses that there are in fact substantial grounds that there is a real risk of refoulement.

Gesang: In your opinion, what is the intention behind the more recent treaty that has been negotiated between the UK government and the government of Rwanda?

Leyland: This more recent treaty, which was ratified on 25 April 2024, has the declared overarching objective of deterring dangerous and illegal journeys to the United Kingdom which are putting people's lives at risk, and, at the same time, to disrupt the business model of people smugglers who are exploiting vulnerable people. It is intended as a commitment to specific, clear and binding obligations for the creation, maintenance and enforcement of a partnership for dealing with the relocated individuals. The agreement seeks to strengthen the oversight arrangements by creating an independent monitoring committee. The Treaty commits the signatories to ensure that their obligations can both in practice be complied with and are in fact complied with. Achieving this, however, is far from easy – which explains the critique from Human Rights advocates.

This also does not really fix the issues the SC had with the case in the first place. As the UNHCR [United Nations High Commissioner for Refugees] has stated, changes in the practice of asylum adjudication alone would not overcome the concerns set out in 2022. The final judgement on such questions should lie with the courts which are the state's most appropriate branch to deal with it. The then Conservative government begged to disagree and tried to remove the courts' jurisdiction through the inclusion of ouster clauses.

Gesang: Could you expand a bit more on the topic of 'ouster clauses', and explain how it is relevant in this case?

Leyland: The starting point is to understand how the rule of law applies under the UK constitution. The courts can only uphold it if they can review the actions of public bodies under government legislation to see whether these actions are lawful. Total ousters would give rise to judicial 'no go' areas in the sense that the courts would be prevented from even considering the statute to determine as a matter of law, whether decision-makers are operating within their jurisdictional limits. Given that judicial review is about determining questions of legality rather than fact, the judicial interpretation of ouster clauses has long been recognised as crucial. For instance, would a statutory clause such as 'Shall not be called into question in any court of law' exclude the jurisdiction of the courts?

In the famous Anisminic case, even such a provision did not oust judicial review. This is because the court decided that such a 'determination', in that case made outside the Foreign Compensation Commission's jurisdiction, was not truly a determination. Consequently, this meant that any determination, or one similar to it, must be read as to exclude ultra vires determinations. The application of ouster clauses is thereby reduced enormously. In Privacy International, Lord Carnwath in the Supreme Court applied and restated the Anisminic principle in some detail. He confirmed that excess of jurisdiction cannot be ousted and stated that: "It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude judicial review".

Returning to the Safety of Rwanda (Asylum and Immigration) Act 2024, the UK's international treaty obligations which featured in the Rwanda case are specifically ruled out as grounds for legal challenges. For this reason, it was not possible for the Home Secretary to declare that the Bill as proposed was compatible with UK international treaty obligations. The new legislation would require Rwanda to be treated as a safe country even if from an objective standpoint, for example of international law and domestic law, the procedure fails to meet the criteria. Section 2 of the Act actually states that: "Every decision-maker must conclusively treat the Republic of Rwanda as a safe country". This rule applies notwithstanding other provisions of domestic or international law. In effect, the measure is intended to expressly dis-apply the Human Rights Act and the ECHR, and disregard international treaty obligations which had been recognised in previous litigation. In particular, by restricting access to a court the bill as enacted breaches Article 13 - the Right to an Effective Remedy.

It also allows government ministers instead of the courts to determine compliance with its provisions using draft guidance and the civil service code. It should be the courts dealing with what would otherwise be judicial questions, but this disapplies ECHR. Indeed, the final version of the Act has gone further than ever before, dis-applying almost all of the key provisions of the Human Rights Act in respect of removals to Rwanda.

Gesang: How does this fit in with the broader political platform of the Conservative Party and the changes experienced by the party?

Leyland: Some Conservative MPs and Reform UK supporters have argued that the legislation should override the Human Rights Act, ECHR and the Refugee Convention. Others regard the issue as providing an opportunity to leave the ECHR altogether. From the standpoint of UKIP, Reform UK, Conservative fringe groups and other anti-European campaigning groups, there is an ideological resistance to the imposition of normative values emanating from Europe. This reflects an extreme scepticism over the role of the ECHR and much of the jurisprudence decided by the Strasbourg Court.

At another level, the passage of the Bill exposed the virtual inability of Parliament to resist measures by a majority government which might undermine fundamental human rights and breach the UK's treaty obligations. The bill proceeded through the House of Commons intact. The House of Lords passed a series of amendments many of which have been rejected in the ping pong between Commons and Lords. Probably the most far-reaching modification proposed by their Lordships was designed to ensure that the Bill would comply fully with the UK's obligations under domestic and international law. In other words, if accepted, the safeguards under the HRA and international treaty obligations would be respected. Other amendments included a requirement for ministers to publish a timetable for removal, protection for unaccompanied children seeking asylum and the exclusion of victims of modern slavery and human trafficking from the Rwanda deportation scheme.

In a nutshell, the Safety of Rwanda Act 2024 oversteps the mark in terms of its constitutional impact on the fundamental principle of the rule of law. It is not only clearly intended to prevent judicial scrutiny in a field where judicial oversight would be expected, but it takes the ouster strategy up a notch by seeking to prevent judges from deciding the type of jurisdictional question relating to legality and rights protection which other judgments including Anisminic and Privacy International regarded as falling squarely within the province of the courts.

Gesang: Considering the outcome of 2024 the General Election, are the provisions in the Safety of Rwanda legislation likely to be activated?

Leyland: The Labour Party has won an overwhelming majority in the July 2024 General Election. The new government is committed to ditching the Rwanda policy altogether. In consequence, the ouster provisions in the Safety of Rwanda Act 2024 will not lead to the anticipated clash between the government, asserting the will of Parliament (implementing a flagship policy) and the courts over the ousting of their judicial review jurisdiction. Nevertheless, it is still interesting to remind ourselves of the scenario envisaged in the Jackson case because the approach to drafting the legislation illustrates the brazen disregard of the 2019 to 2024 Conservative Government to fundamental rule of law principles and Human Rights protection under the Human Rights Act 1998, as well as the neglect of the UK's international treaty obligations. In fact, the extreme form of the legislation, alluded to above, ousting the jurisdiction of the courts entirely seems almost to have been calculated to prompt a robust response from the judges. If the courts were to react robustly they might draw upon Lord Steyn's obiter statement in Jackson v AG echoed by Lord Hope and Lady Hale which envisages the abolition of judicial review as a possible justification for overriding a sovereign act of Parliament. This case could have been used to provide authority for dis-applying the statute on the grounds that it is unconstitutional. The parliamentary joint committee on Human Rights has in fact argued that the Rwanda legislation should not be complied with for precisely this reason. In constitutional terms, defiant disapplication by the UK Supreme Court should be regarded as the 'nuclear option'. Such a decision might be welcomed as something like a Marbury v Madison moment of delight for legal constitutionalists. But, of course, such an outcome under the previous Conservative government would have also run the risk of prompting a legislative backlash aimed at withdrawing from the ECHR and severely nullifying judicial power.