This Report summarises the Bingham Centre's Rule of Law analysis of the Government's Safety of Rwanda (Asylum and Immigration) Bill.
The purpose of this short Report is to inform the House of Lords consideration of the Bill at its Second Reading on Monday 29th January. It aims to assist the House by identifying the most significant Rule of Law issues raised by the Bill which will require detailed debate during the Bill's passage.
It identifies areas where amendments to the Bill will be required in order to make it compatible with the most basic requirements of the Rule of Law, but it does not at this stage suggest specific amendments. A further more detailed report will be published considering specific amendments to inform the Bill's later stages.
The Report applies a close legal analysis of the Bill's provisions, and considers the Government's explanation of the justification for them in the Explanatory Notes, and its explanation in the ECHR Memorandum of why the Bill's provisions are compatible with the Convention rights. It also considers the provisions of the Rwanda Treaty as explained in the Explanatory Memorandum prepared by the Home Office.
The Report's conclusion is that the central purpose of the Bill, to conclusively deem Rwanda to be a safe country in light of the recently concluded Rwanda Treaty, is contrary to the Rule of Law because it would amount to a legislative usurpation of the judicial function, contrary to the UK's constitutional understanding of the separation of powers, which requires the legislature to respect the essence of the judicial function.
It also concludes that certain provisions in the Bill are contrary to the Rule of Law because they are manifestly incompatible with the UK's obligations under international law, including the European Convention on Human Rights (ECHR) and the international law principle of non-refoulement which is enshrined in many sources of international law by which the UK accepts it is bound, including the Refugee Convention, and which is arguably also a principle of customary international law.
Conclusively deeming Rwanda to be safe is incompatible with Articles 2 and 3 ECHR, and with the core international principle of non-refoulement because it precludes judicial determination of the safety question that the non-refoulement principle requires courts to decide. Legislating notwithstanding the UK's international obligations on this scale is unprecedented and represents a new departure in the UK's recent disregard for international law. The Rule of Law, as Tom Bingham made clear in his authoritative account of the concept, includes the requirement that States act compatibly with their obligations in international law.
Disapplying the Human Rights Act is incompatible with the right to an effective remedy in Article 13 ECHR. This is unlikely to be prevented by the Bill's preservation of the possibility of a declaration of incompatibility under s. 4 of the Human Rights Act, given the Government's evident determination to proceed with removals to Rwanda even in the face of such a declaration, which does not affect the legal validity of the Act.
Limiting suspensive remedies to cases in which the complaint is of the risk of ill treatment in Rwanda is also clearly in breach of the right to an effective remedy in Article 13 ECHR.
Conferring a ministerial power to choose not to comply with interim measures of the European Court of Human Rights is incompatible with the right of individual petition in Article 34 ECHR.
The House of Lords is being invited to approve legislation including provisions which on their face are incompatible not only with well established understandings of the separation of powers between the legislature and the judiciary, but with a number of the UK's international obligations, including under the ECHR.
In accordance with its well established constitutional function as a guardian of the Rule of Law in Parliament, the House of Lords should prepare to revise and amend the Bill to remove its flagrant incompatibilities with the requirements of that most fundamental constitutional principle.