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The Rule of Law, Rwanda and the British Constitution

 

PRESS RELEASE        

                                        

New Publication: Rwanda Bill Does NOT Breach ‘Rule of Law’.

 PDF: A. Speaight KC – The Rule of Law, Rwanda and the British Constitution.

Immediate – 1 March 2024

As critics marshal their forces against the Safety of Rwanda Bill, due to be debated in the Lords on Monday, many claim the current bill to ‘stop the boats’ is contrary to ‘the rule of law’. They allege it violates Britain’s Constitution and the independence of the courts given the separation of powers. They also contend that by disapplying swathes of international law, the bill puts Britain on a collision course with its international law obligations, if not in breach of them.

But, in Politeia’s new publication, The Rule of Law, Rwanda and the British Constitution, Anthony Speaight KC explains that such criticisms are ill-founded. The ‘rule of law’ itself is a matter of controversy. Its meaning has been distorted in the last decade especially, under the influence of a book written in 2010 by Lord Bingham.

Whereas Bingham began with an orthodox definition of the rule of law – people and authorities in a state should be bound by laws publicly made, and publicly administered by courts – he added eight further principles.  One, a fallacy now at the heart of today’s controversy, stated: ‘The rule of law requires compliance by the state with its obligations in international law as in national law.’

But, as Speaight explains, that is not a description of a law-based society but an exhortation to a government. He warns that if  the rule of law is confused with separate political concepts it ‘is drained of any utility’ –  indeed there has been ‘a negligible basis’ in scholarship for Lord Bingham’s ‘principles’.

Bingham’s proposition poses problems for laws made at Westminster. Speaight points to one of the consequences of  Bingham’s fallacy. The House of Lords Constitution Committee in its recent report, citing Bingham as justification,  went so far as to claim the supremacy of international laws over our own legislation.

As their lordships put this novel doctrine:

‘We reiterate that where domestic and international law diverge, the duty reflected in the Ministerial Code to comply with international law remains.’[1]

If that were true, it could produce surprising results. A minister who implements a statute of parliament could be breaching the rule of law. Or when human rights and international law pull in different directions compliance would be impossible (as happened in the case of Kadi[2] about UN sanctions).

Nor should we be misled into claims that the Bill distorts the meaning of the rule of law.   Such a criticism wrongly elevates the separation of powers to a rigid principle, something it has not been previously under the constitution.

This government, Speaight explains, is not the first to enact legislation that a country is safe for asylum purposes. It was done by a government statute in 2004 under Labour which introduced legislation creating an irrebuttable presumption that a number of listed countries were save for the purpose of removing an asylum seeker. There was no hullabaloo.

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Notes to Editors

  1. The Rule of Law, Rwanda and The British Constititution by Anthony Speaight is published by Politeia, 55 Tufton Street, London, SWIP 3QL and can be accessed here.
  2. Anthony Speaight KC is a bencher of Middle Temple and Visiting Professor in the School of Law, University of Surrey. He has served as a member of the Government Commission on a UK Bill of Rights. His legal textbooks include The Architect’s Legal Handbook (Editor), 2021. His recent papers include The Forgotten Human Right: the Right of Parents relating to Children’s Education (with Shannon Hale) (2023) and, for Politeia, Reforming Legal Aid – The Next Steps (2022).
  3. Established in 1995, Politeia is an independent, non-partisan think-tank providing a forum to discuss economic, constitutional and social policy with a particular focus on the role of the state in people’s lives.

 

[1] House of Lords paper 63 of session 2023-2024, para 63, published on 9th February 2024. Safety of Rwanda (Asylum and Immigration) Bill (parliament.uk)

[2] European Commission v Kadi 2013, European Court of Justice

Anthony Speaight KC

Anthony Speaight KC is a bencher of Middle Temple and Visiting Professor in the School of Law, University of Surrey. He has served as a member of the Government Commission on a UK Bill of Rights. His legal textbooks include The Architect's Legal Handbook (Editor), 2021. For Politeia he has written: The Rule of Law, Rwanda and the British Constitution (2024) and Reforming Legal Aid - The Next Steps (2022).

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