Parliament, the Courts and the Rwanda Bill
Whose Laws, What Constitution?
This week the government sought again to navigate the international laws which prompted the Supreme Court to rule against the removal of illegal migrants to Rwanda. A new bill began its passage in the House of Commons. But will the bill get through both houses of parliament? Or will the courts once again reject Parliament’s attempt to honour the people’s mandate to control Britain’s borders. Here, Anthony Speaight KC, explains that we are at the beginning of a mighty contest.
At first sight the Supreme Court’s decision in November on removals to Rwanda appeared to have shut and bolted every door by which the government might escape. Whereas a decision on the interpretation of a statutory provision can be reversed if parliament chooses to modify the provision in a sufficiently clear way, the Supreme Court’s decision was essentially one of fact. And whereas a decision on one set of facts can cease to be determinative, if and when they are superseded by new and different facts, the Supreme Court made findings in such sweeping terms about the “culture” of Rwanda, and its government’s inability to achieve its aspirations, as to minimise the scope for any early fresh facts about Rwanda to change the state of play.
The government has sought to navigate out of this position by an unprecedented route. It seeks to take to itself the jurisdiction to rule whether subsequent facts have changed a factual assessment made by the court, and at the same time asserts its continued acceptance of its international obligations. Is there a version of the Safety in Rwanda Bill on which the Conservative Party can unite, and which the House of Lords will pass? And if so, what will the Supreme Court say?
Achieving a 2nd reading for the Rwanda bill does no more than mark the beginning of a mighty contest. It involves a conflict between three different conceptions of the role of international law, of the meaning of the rule of law, and of the democratic supremacy of parliament.
In the middle is the orthodoxy which regards parliament as sovereign in the British constitution, and supports the UK policy of complying with treaty obligations, whilst maintaining that they are not part of domestic law. On the right there is a growing desire to disentangle the UK from international obligations such as those in the Refugee Convention and the European Convention of Human Rights, and in the short term feels little compunction in disregarding them. And on the left there is an emerging doctrine which sees parliament as now constrained by an overarching international law. Before it ends, the drama will in one way or another signify a constitutional milestone.