30th November 2023
This post is about three elements of the judgment of the Supreme Court on the Rwanda policy – and how the Supreme Court decision means that the Rwanda scheme cannot be saved by legislation and treaties alone.
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These three parts indicate the difficulties for the government if they seek to use legislation so as to circumvent the judgment.
And two of these parts are about things which the Supreme Court did not decide.
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The first of these is about, of course, the European Convention on Human Rights (ECHR).
Here it should be noted that the court had granted permission for the Convention to be raised as a ground of cross-appeal:
(The government appealed – as they lost at the Court of Appeal – but some of the asylum seekers cross-appealed on points on which they had lost.)
The Supreme Court dutifully set out the Convention point in two paragraphs of the judgment:
You will see, however, that even in these paragraphs the court is careful to set out the Convention position alongside other applicable laws.
The court then makes this point about other applicable laws explicit:
In essence, the court is stating that the ECHR point does not stand alone.
And then in paragraph 106, towards the end of the judgment, the court says (with emphasis added):
This means that even if the ECHR did not apply directly, and even if the Human Rights Act did not exist, then the court would have decided the case the same way anyway, because the key legal principle is in other other applicable law.
That key legal principle is non-refoulement – that is the legal rule that requires that refugees are not returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. The court found on the evidence before it that there was such a risk if the asylum-seekers were removed to Rwanda.
It thereby follows that if the government were to bring forward legislation to limit the effect of the Convention in Rwanda removal cases it would not make any difference. The courts would just rely on other laws for the same point.
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And this brings us to the second part, which is rather fascinating.
This is the thought-provoking – indeed, provocative – paragraph 25:
Now this is quite the passage.
So-called “customary international law” is, almost by defintion, outside the power of any one nation state to change. It will apply anyway. As the court says:
“the significance of non-refoulment being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect.”
A nation state may break that law, but they cannot unilaterally change it.
In other words there is no legislation whatsoever the government can bring forward that will mean that this rule would not apply to the United Kingdom.
Deftly, the court ends this point with “as we have not been addressed on this matter, we do not rely on it in our reasoning”.
This suggests that if the Rwanda policy is re-litigated to the Supreme Court, even if the government somehow excludes all the applicable legal instruments (and not just the ECHR and Human Rights Act) then the court may well still hold that the policy is unlawful, on the basis of customary international law.
That is quite the marker.
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The third part is about what the court did decide.
Here paragraph 105 is worth a very close look:
Here the court is stating that mere formal changes – such as placing the Rwanda policy on the basis of a treaty, as opposed to a flimsy MoU with no legal effect – will not, by themselves, render the policy lawful.
A treaty – which would provide for enforceable rights for individuals – would be necessary, but it would not be sufficient.
The real change required is that there be compelling evidence that, in practice, the Rwanda scheme will “produce accurate and fair decisions”.
And this is also outside of the scope of what the government can push through parliament: for no mere Act of Parliament can by itself change the situation on the ground in Rwanda.
Either the Rwanda scheme can be shown to produce the results required by the applicable laws – and, if need be, customary international law – or it cannot.
And if it cannot, it would seem that the Supreme Court will again hold the policy to be unlawful, whatever legislation is passed at Westminster.
This case now comes down to evidence, not law.
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Without relying on the ECHR the Supreme Court has placed the government in a rather difficult situation if the Rwanda scheme is to continue.
It would seem that only actual improvements in practical policy can now save the scheme – not clever-clever “notwithstanding” legislation.
And for a Supreme Court that had developed a reputation for being deferent to the executive and legislature on “policy” matters, this is a remarkable position.
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The Supreme Court has covered all the bases in a neatly overlapping way. Cleverley appears to accept the inevitable, which probably means he won’t last long as Home Secretary. He seems to have discovered some honour over this, or maybe he never believed in the policy at all.
In the words of the late Jim Bowen: “Oh dear, what a shame, never mind.”
I agree, Cleverly looks like a nice guy, intelligent too – rather superior to the usual run of government ministers
Not very nice to the residents of Stockton upon Tees though!!
Obviously looks can be deceptive.
So (regarding the safety of placing claimants in Rwanda) the Court has told the Govt to ‘put up or shut up”. And that’s to the current govt, quite incapable of putting up anything that looks like a real job of work, and even less capable of shutting up for five minutes.
I am not a lawyer and I skimmed through the judgement but it was immediately obvious to me that the Rwanda idea was absolutely a non starter. It seems amazing to me that civil servants have not read through the judgement and advised the prime minister of his impossible situation re the Rwanda plan.
It would be astonishing if civil servants had not read the judgement and advised the Prime Minister the scheme was a bon-starter. Given the track records if the characters involved it would be rather a lot less than astonishing if the politicians didn’t hear the advice, dismiss it out of hand and plough on their own sweet way with their magical thinking.
I can certainly see that Parliament can’t unilaterally decide that International Law is “wrong” over the head of the Supreme Court’s decision about what international law actually is.
But by passing new legislation it seems to me that Parliament can (effectively) say to the Courts that they should disregard International Law.
As I understand it – the UK’s Human Rights Act specifically reserves Parliament’s power to pass legislation inconsistent with that Act, and by extension legislation that is inconsistent with the ECHR.
I have not read the whole of the Rwanda judgement, but from the commentary I have seen it seems that the Court has said that (absent a very quick change in the facts as to whether Rwanda will be safe place for the UK to return refugees to) there is nothing the UK can do make the Ruanda policy lawful under international law.
Clearly the UK can (if my interpretation of the Human Rights Act is correct) make the Rwandan policy lawful under UK law, at least so far as the Human Rights Act and ECHR is concerned.
I would not expect the Supreme Court to say that there is nothing the UK Parliament can do to make the Rwandan policy generally lawful under UK Law, and certainly not where the point is not specifically relevant to the case – which it was not. To do so would be a direct challenge to the supremacy of Parliament.
If the challenge were made – effectively Parliament would have to expressly and clearly direct the courts to disregard international law and all the UK’s treaty commitments – I can see the Supreme Court (and the courts generally) working hard to find the legislation unlawful or unclear and thus strike it down, but ultimately surely the Courts would uphold the doctrine of Supremacy of Parliament?
I cannot see how legislation can be drafted that would circumvent the risk of refoulement. That’s at the door of Rwanda, a country over whose legislation, etc., we have no control.
What an excellent (I admit I expect and anticipate nothing less!) and uplifting piece. Effectively, given the circular nature you’ve outlined of evidence – legality – evidence -le…, the government (unfair to describe them as gormless?) have found themselves in a situation that even Joseph Heller would appreciate!