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A Dubious Amendment – Rwanda and the Rule of Law

Next week the Rwanda Bill returns to the Commons – complete with Lords’ amendments. But, says the international lawyer, Thomas Grant, one amendment by Labour’s Lord Coaker would have an uncertain, and possibly undesirable, effect when it comes time to interpret and apply the eventual Act, and should therefore be rejected.

The Safety of Rwanda (Asylum and Immigration) Bill, which concluded its 3rd reading in the Lords this week, will return to the Commons next for Lords’ amendments to be considered. The Bill has attracted widespread comment, from both supporters and opponents.

Opinion continues to divide along much the same lines of policy as existed before last November, when the Supreme Court held a ‘real risk of ill-treatment’ to exist for persons removed to Rwanda. Whatever one thinks of removal as a tool of immigration policy, there is one amendment the House of Commons should consider with caution.

The Bill opens with a statement of purpose:

‘The purpose of this Act is to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by enabling the removal of persons to the Republic of Rwanda under provision made by or under the Immigration Act.’

But Labour’s Lord Coaker, a front bench home affairs spokesperson, proposed amending the Bill to add the following words: ‘while maintaining full compliance with domestic and international law’. The amendment, which the upper house accepted,  is inserted at the end of this paragraph. The words of the amendment therefore modify the phrase ‘enabling the removal of persons…’. In other words, if the amendment were to be kept, then the eventual Act would say that the Government is only enabled to remove persons in a manner that complies with the law, domestic and international.

At first blush, to affirm ‘compliance with domestic and international law’ sounds unobjectionable. On reflection, however, the amendment raises a number of uncertainties.

First, there is an uncertainty as to the domestic law limb of the amendment. Where it calls for ‘compliance with domestic… law’, the amendment might be read to incorporate the domestic law of the United Kingdom into the Act by reference. If that is how the amendment is read, then the amendment is rather peculiar. It would restate existing laws already on the books—an operation with no purpose. Or it would restate—and reassert—existing laws that the new Act changes or overrides—an operation that would deprive the new Act of effect. Parliament no doubt has the authority to change existing laws or override them with new laws. Statutory language that, in one breath, exercised that authority, and in the next declared that the same existing laws continue to apply unchanged would be self-negating. This is not a rational way to draft an act. True, Parliament at times—probably since the 17th century—has used ‘notwithstanding’ clauses to identify particular rules that other rules do not affect, but Lord Coaker’s ‘maintaining full compliance’ amendment is not that kind of clause. Interestingly, a search of United Kingdom statutes in force does not disclose any clause quite like the amendment.

Another way of reading the ‘domestic law’ limb of the amendment is to read it as calling on Ministers, when they turn to apply the eventual Safety of Rwanda Act, to do so in a manner that does not trespass against the legal principles that apply to Ministers in their official conduct. In his explanatory statement on the amendment, Lord Coaker says that it is an amendment that ‘seeks to ensure that the eventual Act is fully compliant with the rule of law (emphasis mine).

But rule of law is a principle that applies to Ministers already; a new parliamentary enactment does not need to restate that the principle applies. One might even wonder, if one act says that rule of law applies, whether Ministers’ implementation of other acts somehow falls outside the rule of law! Ministers, of course, are required to observe the rule of law in all their official conduct. A new law need not restate that non-negotiable requirement.

Under the international law limb of the amendment, difficulties arise as well. As Lord Mance observed in a lecture in 2017 at King’s College, London, which has come to be widely cited, it is a fundamental principle of the constitution of the United Kingdom that ‘the reception of international law into domestic law depends upon its acceptance in one of two ways: either by Parliament through legislation or by the judges through the common law’. When Parliament through legislation accepts international law, it does so in regard to a particular international law rule or rules. Parliament does not—or, at least, to date, has not—declared that international law as a whole shall be received into domestic law. There are constitutional systems under which international law as a whole is received into domestic law. The United Kingdom’s is not one of them. No doubt Parliament could change the constitution, so as to give international law as a whole direct effect as part of the domestic law. However, this would be a momentous step, transformative of the United Kingdom’s law and institutions. A passing reference in the introductory statement of purpose to an immigration act would not be the place to bring such a transformation about. Accepting that the amendment is not to inaugurate the reception, whole cloth, of international law into United Kingdom law, one struggles to find a purpose for it.

In his concluding remarks on 12 March before transmittal of the Lords amendments to the House of Commons, Lord Coaker said that ‘none of us disagree with the proposition that the country faces a real problem that we need to deal with’. The lines of debate, instead, arise over how to address the real problem to which unsafe and unlawful immigration gives rise. The premise behind the Safety of Rwanda Bill is that the United Kingdom, by removing to Rwanda persons who have entered the country by unsafe and unlawful means, would deter others in future from attempting to enter by unsafe and unlawful means. Opponents of the Bill have questioned the premise. They also have argued that the Bill would lead the United Kingdom to breach certain obligations binding on the United Kingdom under international law, in particular obligations under the European Convention on Human Rights and the UN Refugee Convention.

The merits of the policy behind the Bill, if the Government in time implements it, will be visible in its results, one way or the other. Whether the policy entails the United Kingdom violating international law obligations, too, is a question that will find its answer later—including, perhaps, in court judgments when (as is to be expected) litigants challenge the act and its implementation.

The ‘full compliance’ amendment, however, risks unintended consequences that reach well past the question of public policy that the Bill involves. Those consequences also reach well past the particular legal questions that an eventual Safety of Rwanda Act would raise. The House of Commons should consider all of the Lords amendments with care, but the ‘full compliance’ amendment is one that for reasons both of drafting and of constitutional principle the House should reject.

 

Dr Thomas Grant

Dr Thomas Grant is an international lawyer and Fellow of the Lauterpracht Centre for International Law in Cambridge and Senior Research Fellow at Wolfson College. His books include Aggression against Ukraine: Territory, Responsibility, and International Law (2015) and Admission to the United Nations: Charter Article 4 and the Rise of Universal Organization (2009). For Politeia he was author of Avoiding the Trap – How to Move on from the Withdrawal Agreement (2019) and Leave as You Entered: Brexit in International Law (2019).

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