30th January 2024
The decisions of judges, other than about case and court management, can be divided into two sorts.
First, there are rulings. These rulings can be about the substantive law, or they can be rulings on the admissibility of evidence, or they can be rulings on procedural technical points. In each instance, the judge will identify the rule, apply it to the situation before the court, and decide the outcome.
Add second, there are findings. These are determinations of fact which are required for the case before the court to be decided at a trial. These facts are, in turn, based on the evidence admitted before the court.
If there is no dispute, then a judge can make a finding of fact based on the undisputed evidence before the court; but if there is a dispute of fact then the judge has to weigh the conflicting evidence and make a finding.
The judge will then apply the rules to the facts found.
(In a criminal trial – and some civil trials – where there is a jury, it will usually be the jurors that will determine any disputes of fact and thereby any consequential legal liability.)
A reasoned judgment by a court deciding a case can include both types of decision; though in a straightforward case there is normally only a dispute of fact.
The key point for the purpose of this post is that rulings and findings are different.
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Now let us go to the Supreme Court judgment on the Rwanda policy.
The court set out the statutory criteria for determining whether Rwanda is a safe third country (emphasis added):
“A country is a safe third country for a particular applicant, if:
“(i) the applicant’s life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country;
“(ii) the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention;
“(iii) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected in that country; and
“(iv) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country.”
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After a detailed examination of the evidence, ultimately the Supreme Court decided (again emphasis added):
“As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. The right of appeal to the High Court is completely untested, and there are grounds for concern as to its likely effectiveness. The detection of failures in the asylum system by means of monitoring, however effective it may be, will not prevent those failures from occurring in the first place. We accept the Secretary of State’s submission that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up. Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were. The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings.”
In other words the Supreme Court made a finding of fact based on the evidence placed before it. The evidence “established” a thing, and that thing in turn determined the case.
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Let us now look at the government’s Rwanda Bill currently before the House of Lords on its passage through parliament.
Here is clause 2 (note a Bill has “clauses” as it passes through parliament, which then become “sections” when it becomes an Act):
You can see what the government is seeking to do.
Instead of it being a matter for a court to decide whether Rwanda is a safe third country, the Bill removes that discretion absolutely – regardless of any evidence. Indeed such evidence may not even be relevant with this deeming provision.
A court will not be able to make its own findings, it “must conclusively” decide Rwanda is safe – whatever the actual facts.
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And now let us go to a speech in the House of Lords from the former Conservative Lord Chancellor Kenneth Clarke:
According to Hansard, Clarke said:
“[Ministers] have decided to bring an Act of Parliament to overturn a finding of fact made by the Supreme Court of this country.
“If we pass this Bill, we are asserting as a matter of law that Rwanda is a safe country for this purpose, that it will always be a safe country for this purpose until the law is changed, and that the courts may not even consider any evidence brought before them to try to demonstrate that it is not a safe country.
“That is a very dangerous constitutional provision. I hope it will be challenged properly in the courts, because we have an unwritten constitution, but it gets more and more important that we make sure that the powers in this country are controlled by some constitutional limits and are subject to the rule of law.
“Somebody has already said in this debate that Parliament, claiming the sovereignty of Parliament, could claim that the colour black is the same as the colour white, that all dogs are cats or, more seriously, that someone who has been acquitted of a criminal charge is guilty of that criminal charge and should be returned to the courts for sentence. Where are the limits?
“As time goes by in my career, I always fear echoes of the warnings that Quintin Hailsham used to give us all about the risks of moving towards an elected dictatorship in this country.
“The sovereignty of Parliament has its limits, which are the limits of the rule of law, the separation of powers and what ought to be the constitutional limits on any branch of government in a liberal democratic society such as ours.”
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Yes, Clarke had at best a mixed record as Lord Chancellor – especially in respect of the severe funding cuts to legal aid.
But he is absolutely right to set out, with first principles, the fundamental danger this bill presents.
The government should leave findings of fact to the courts – and if the court’s findings are unwelcome, then ministers should work to change the facts.
Using the law to deem a country safe which the Supreme Court found to be unsafe after a detailed examination of the evidence, is an unwelcome move by this government.
And even a former Conservative Lord Chancellor can spot this.
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Is this going to make Kenneth Clarke an enemy of the will of the people?
Your case is absolutely clear, and completely in line with other, less authoritative, examinations of this Bill that I have seen.
My question is: surely the Government has Law Officers who are required to ‘sign off’ on any draft legislation before it is presented to Parliament? Assuming this is the case, who are the persons responsible, and is there any way they can be held accountable to their professional bodies for the clearly incompetent advice they have given their clients, the Government?
I realise that this ‘advice’ may have been what they were instructed to say, but being a member of a profession surely means that there are lines one cannot cross despite the pressure your client, or even employer, might place on you.
What if in the short future there is a war or politically instability in Rwanda? Will this bill be null? Or does this bill dictates the Rwanda is safe for all eternity?
Thank you for this admirably lucid explainer. Your quotation of the actual clauses of the bill- which most journalists don’t bother with – makes it crystal-clear what the problem with the Bill is. Let’s not forget that it was this Government (in a previous incarnation) which described judges as “enemies of the people”.
Lord Sumption has argued that the Treaty contains provisions which prevent refoulment, which is the concern of the Supreme Court cited above. If Lord Sumption is correct then the government surely does not need this legislation to fix the refoulment problem. It may well be that there are other facts about Rwanda that makes it a not safe country (e.g. laws on homosexuality). As Lord Sumption pointed out, the Bill is incompatible with Article 6 of the ECHR – in which case the issue is the rule of law, not safety
I’m with Kenneth Clarke: Parliament cannot with any effect legislate that black is white. King Cnut understood – or learned that – of making waves stop or recede at his ruling. Yet 1,200 years after Cnut our Concervatives haven’t understood the point. Legislate what you will, the earth will still go around the sun.
Thank you for this blog. What a shameless so-called government of the poor old UK at present.
Has anyone yet seen traces of Wagner venturing into Rwanda?
It is arrant nonsense for Parliament to pass legislation deeming something to be true (still less, will remain true, whatever happens) when the highest court has already assessed the evidence and found that as a matter of fact it is not true.
One of your Substack commentators has suggested a tweak to the legislation which seems to me to be significantly more likely to work. Rather than baldly asserting that Rwanda is conclusively presumed to be safe, a minister could be empowered to certify that a third country is safe. That certificate would be conclusive proof, but could be judicially reviewed on the usual grounds.
That might be better, if we can assume that the government is actually wants the Rwanda plan to be implemented and thought it would have a real effect on immigration, but it seems to me that the driver here is political not practical. The government wants to be seen to be taking as hard a line as possible, and does not care what damage that line causes to the body politic.
If this government is spared the fate which so many have predicted for it, can Britain’s adherence to the pesky treaties which hamper its progress towards the present crowd’s vision of Paradise survive another Parliament?
If we withdrew from the ECHR, presumably there would be no need to declare that black is white and that truth is lies. Or would there still be some irritating, residual obligation lurking in the dark and sinister shadows of lefty Common Law?
Parliament is sovereign, not divine. It cannot change reality. No law, however worded, can make pi be 3, make a quart fit into a pint pot , or make Rwanda be safe if it is not already so. Any law purporting to decide a fact is ultra vires, and by passing this Rwanda Bill, parliament would be playing a very dangerous game as it would be a very strong invitation for the courts to start judging the law. Currently, this only happens as part of the polite fiction that the true intent of some regulation is not quite what the words say, but excessive pressure could release the courts from that constraint.
(Well, since units are arbitrary, I suppose it could define a pint and a quart as both being 1000ml, which would be a very entertaining spectacle.)
“Parliament is sovereign, not divine.” is a great line.
Some legislatures have actually considered changing the value of pi. According to Wikipedia: “The Indiana pi bill was bill #246 of the 1897 sitting of the Indiana General Assembly, one of the most notorious attempts to establish mathematical truth by legislative fiat.” The bill did not pass, so we don’t know whether anyone drawing a circle with an unlawful ratio of circumference to diameter would have been prosecuted.
In Carl Schmitt’s famous formulation, that person (or agency) is sovereign which has the power to create the state of exception. The state of exception is the suspension of law, and it’s replacement with, ultimately, force.
Carl Schmitt in the 1930s, much discussed more recently especially by Giorgio Agamben, but following a tradition that goes back to Jean Bodin in the 16th century and Hobbes in the 17th.
Bodin specifically identifies Ken Clark’s example as a characteristic of the exercise of sovereignty: the courts may find a person guilty, the sovereign may set that aside .. or a court finds innocent and the sovereign says guilty.
This classic understanding of sovereignty underlies constitutional declarations of states of emergency, in a tradition that goes back to the Roman Senate’s power to declare Iustitia.
Isn’t it about time we started to look more carefully at the history of sovereignty theory, and to educate people as to its real nature?
And isn’t it time we started a more public debate, in the light of classical definitions of sovereignty, on the question of ‘The Sovereignty of Parliament’? Don’t we urgently need to establish that a healthy constitution (written, unwritten, gluten-free or otherwise) provides effective limits to parliamentary sovereignty.
Because this bill is actually in a long long line of actions by executive authorities seeking to remove any checks or balances. And that means that law has been replaced, ultimately, by force.
What happens if this bill passes, and a British court acts contrary to the Act’s provisions, and the Executive requires the police to arrest the judges? What happens if, as with the Gina Miller cases, populist newspapers doxx those judges under ‘Traitor’ headlines? ‘Enemies of the will of the people’ -language Sunak has used in recent weeks.
If that push came to that particular shove, what do we think the Met Commissioner would actually do? Should we not be posing that question to the Met now?
Thanks for this post, it’s particularly relevant given that today the news is that the bill has now passed its first reading in the Lords reversing a rejection last week.
It seems that the Tory whips have been busy twisting arms between that first vote and the vote last night- no doubt reminding all the many ‘nobles’ appointed by Cameron, May, Johnson, and Truss that they were elevated to gambol in the sunlit uplands for the rest of their lives at a price and that price is vote as they are told.
Except that, if they don’t, Cameron, May, Johnson, and Truss can’t kick them downstairs again. Neither can their latest incarnation.