Skip to main content

Numerous opinions warn Safety of Rwanda Bill is not compatible with rule of law ahead of today’s Commons vote


Serious concerns expressed by Joint Committee on Human Rights, Bingham Centre, ILPA, the Bar Council, and others

Date of Publication:
12 December 2023

A crucial vote held this evening in the House of Commons saw the Government's controversial new Safety of Rwanda (Asylum and Immigration) Bill comfortably pass its second reading stage by 313 votes to 269.

Justice statueThe Bill was published last Thursday following the signing of a new treaty between the UK and Rwanda. The treaty and the Bill aim to address last month's ruling by the Supreme Court finding that the Government's policy of relocating asylum seekers was unlawful as Rwanda is not a safe country. The Bill declares that Rwanda is a safe country and must be treated as such.

Ahead of today's vote, numerous groups and individuals expressed concern that the Bill is not compatible with the rule of law.

This morning, Parliament's Joint Committee on Human Rights (JCHR) published a 15-page briefing paper on the Bill that finds it would breach international law.

The JCHR says the Bill's declaration that Rwanda is a safe country "raises difficult constitutional questions about the separation of powers and the rule of law". The Bill "prevents the courts carrying out independent and rigorous scrutiny of any claim that there are substantial grounds for fearing a real risk of refoulement/treatment contrary to Article 3 [European Convention on Human Rights (ECHR)]". This would be incompatible with the UK's international obligations including the Refugee Convention and the ECHR.

The briefing highlights that clause 5 of the Bill, which permits the UK to ignore an interim measure issued by the European Court of Human Rights, would expressly authorise a Minister to act in breach of international law.

As the JCHR notes: "Crucially, no matter what the legislation says, it can only affect domestic law. As the Supreme Court explained, the UK is prohibited from allowing refoulement under the Refugee Convention and the EHCR, as well as under the UN Convention Against Torture and the International Covenant on Civil and Political Rights. All of these obligations are in international law."

The Bingham Centre, which is an non-partisan organisation that exists to advance the rule of law worldwide, published a 13-page analysis of the Bill here. It finds that the Bill is contrary to the rule of law.

The analysis states bluntly: "The Report's preliminary 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 reaches the preliminary conclusion 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."

Last week, ILPA (the Immigration Law Practitioners' Association), JUSTICE, and Freedom from Torture published an 8-page briefing on the Bill, which also concluded that the Bill is contrary to the rule of law.

The briefing's key conclusions are:

● The Safety of Rwanda (Asylum and Immigration) Bill legislates a legal fiction, reversing the Supreme Court's factual assessment of the risk of harm in Rwanda, without properly addressing the Court's concerns about the Rwandan asylum system and ousting our domestic courts' jurisdiction to consider the issue; it is an abuse of Parliament's role.

● It disapplies domestically treaties that the UK remains bound by internationally, showing bad faith, setting poor precedent and making the UK an unreliable partner internationally.

● It breaches the European Convention on Human Rights, when commitment to that is a part of the Good Friday Agreement and the Northern Ireland settlement, as well as the UK's treaty arrangements with the EU.

● It is an attack on judicial scrutiny, undermining our constitutional separation of powers.

● It threatens the UK's role as a global leader in championing the rule of law, democracy and human rights.

In a 4-page briefing, the Bar Council finds the Bill "sails very close to the wind in terms of what is acceptable from a rule of law and European Convention of Human Rights perspective."

The Bar Council warns: "In passing the Bill, Parliament would not simply be altering a statute following a court judgment about the meaning of the statute and with it disagreed. Here Parliament would run the risk of failing to respect the court's proceedings and our highest court's recent judgment on a factual matter of grave importance: the risk of inhuman and degrading treatment."

Moreover, the Bar Council says the Bill's "legal fiction" that Rwanda is safe, together with the disapplication of key provisions of the Human Rights Act 1998, in effect amounts to a domestic derogation from the European Convention of Human Rights.

George Peretz KC of Monckton Chambers said in a blog on Substack that the Rwanda bill is a 'collection of lies'.

Peretz wrote: "Much ink has been spilt about whether the Safety of Rwanda Bill breaches international law or domestic constitutional conventions … My point in this blog is a simpler, and less legally intense one: it is that the Bill is dishonest and tells lies. And I take the straightforward position, which I hope MPs and peers will also take, that legislation should not contain lies and dishonesty."

Chatham House's Rashmin Sagoo highlighted that the Bill acts a reminder that democracies are not immune from attacks on the rule of law. Sagoo said in an article on Chatham House that the Bill "contains many problematic clauses with long-term significance and precedent-setting potential" and it "indicates the government's willingness to violate international law". It also "raises fundamental concerns relating to access to justice and the separation of powers, and invites a fight with the UK judiciary."

The Law Society said in a press release that the Bill seeks to overturn the finding of fact confirmed by the Supreme Court regarding the safety of Rwanda.

Ian Jeffery, the chief executive of the Law Society, stated: "This is damaging to both the rule of law and the constitutional separation of powers. While parliament has the right to respond to a court judgment by passing legislation to change a point of domestic law, it cannot use law to change fact. Independent judicial oversight is a bedrock of the rule of law and essential to ensuring there are democratic safeguards for individual rights. The measures taken in this bill would effectively place government above the law and demonstrate a profound lack of respect for the rule of law and separation of powers."

The Home Office yesterday published a policy paper setting out the legal position of the Bill. You can read it online here. It says the Government's approach is justified as a matter of parliamentary sovereignty, constitutional propriety, UK law, and the UK's international obligations.

The policy paper concludes: "[T]he treaty, bill and evidence together demonstrate Rwanda is safe for relocated individuals, that the government's approach is tough but fair and lawful, that it has a justification in the UK's constitution and domestic law, and it seeks to uphold our international obligations. This is a novel and contentious policy, and the UK and Rwanda are the first countries in the world to enact it together. There are risks inherent in such an innovative approach but there is a clear lawful basis on which a responsible government may proceed."