Rwanda policy – The Law and Policy Blog

How the government is seeking to change the law on Rwanda so as to disregard the facts

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.

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.”

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.

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.

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.”

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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A role-reversal? – a footnote to yesterday’s post

1st December 2023

Discussing yesterday’s post with a long-suffering friend, the following thought came to mind.

In the Rwanda judgment, the Supreme Court goes into detail as to the work needed on the ground to make the removals policy robust and practical; and, in turn, the government is seeking to use parliament to simply declare a policy legal instead of illegal.

This seems quite the role-reversal: the court setting out what needs to be done as a matter of policy, instead of the executive and the legislature, and the executive threatening to use the legislature to decide whether something is lawful.

Strange, if you think about it.

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The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in

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.

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.

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.

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.

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.

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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On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate. It would not have been relied upon had the government been actually serious about this policy.

I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday

10th November 2023

Even if the United Kingdom government wins on the lawfulness of the policy, it has already lost in respect of procedure

Those interested in day-to-day politics in the United Kingdom are now looking to next Wednesday for the Supreme Court decision to be handed down on the lawfulness of the Rwanda policy.

The conventional wisdom is that if the current Home Secretary is still in post on Wednesday, a Supreme Court defeat for the government may be the basis for the Home Secretary to resign and campaign for the United Kingdom’s departure from the European Convention on Human Rights, or something.

Nobody outside the court will know the result in advance and so the hand-down will be a moment of drama and excitement.

On balance, any legal challenge to “policy” – that is an approach to general political problems – is likely to fail.

For an entire policy to be quashed it would require that each and every possible application of the policy in any concrete situation must be unlawful – that there is nothing that can be done to save a decision in a particular case.

Courts are reluctant to do this – not least because policy is usually the province of politicians, and judges will not want to trespass.

And the current Supreme Court under Lord Reed often seems cautious in dealing with “policy” challenges.

There perhaps are reasons why this particular policy may be unlawful in the round – and if it was not arguable that the policy was itself unlawful the Supreme Court would not have heard the case – but it would not be shocking if the Supreme Court sides with the government and holds that some applications of the policy may be lawful, subject to certain conditions.

And here is the nub of the situation, which many in politics and the media seem to be overlooking: the courts have already held that there are strict and onerous conditions in particular cases.

These conditions are so strict and so onerous, it may well be that few if any asylum seekers will be relocated to Rwanda, even if the Supreme Court rules that the general policy is legal.

Followers of this blog may recall posts about this at the time of the initial High Court decision and the Court of Appeal decision:

As this blog has before averred, the government can both win and lose a legal case at the same time.

And even if the government wins on whether the policy is lawful, the procedural protections already insisted upon by the courts in the application of the Rwanda policy will present difficulties for a Home Secretary after next Wednesday.

Whoever that is.

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