New reports by Joint Committee on Human Rights and Lords Select Committee on the Constitution warn Bill breaches international obligations
Parliament's Joint Committee on Human Rights (JCHR) has today published the report of its inquiry in the Safety of Rwanda (Asylum and Immigration) Bill.
The focus of the Committee's inquiry and report is on whether the Safety of Rwanda Bill is compatible with the UK's human rights obligations. The Bill was subjected to detailed line by line scrutiny by the JCHR as part of its inquiry. Very notably, the Committee finds the Bill is fundamentally incompatible with those obligations.
Indeed, the Committee finds the Bill goes further than ever before and disapplies almost all of the key provisions of the Human Rights Act 1998 in respect of removals to Rwanda and thereby undermines the fundamental principle of the universality of human rights.
As the Bill allows government ministers to decide whether or not to comply with interim measures issued by the European Court of Human Rights (ECtHR), the Bill openly invites the possibility of the UK breaching international law.
The Government maintains that Rwanda is now a safe country for asylum seekers despite the Supreme Court finding in November that is was not, but the JCHR found the evidence was not clear to support the Government's position.
"We have considered the Government's evidence that Rwanda is now safe, but have also heard from witnesses and bodies including the UNHCR that Rwanda remains unsafe, or at least that there is not enough evidence available at this point to be sure of its safety. Overall, we cannot be clear that the position reached on Rwanda's safety by the country's most senior court is no longer correct. In any event, the courts remain the most appropriate branch of the state to resolve contested issues of fact, so the question of Rwanda's safety would best be determined not by legislation but by allowing the courts to consider the new treaty and the latest developments on the ground," the report states.
The JCHR finds that by denying access to a court to challenge the claim that Rwanda is safe, the Bill is not compatible with the UK's international obligations, most obviously Article 13 of the European Convention on Human Rights (ECHR).
The report states: "Clause 4 of the Bill would mitigate the Bill's impact by allowing for claims based on individual circumstances. It would not, however, make the Bill compliant with the Refugee Convention or with Article 13 ECHR because it would continue to deny access to court for individuals with arguable claims that they face persecution or a violation of fundamental human rights as a result of Rwanda being unsafe generally or because there is a risk of refoulement. Neither would clause 4 provide for a suspensive process, as required by Article 13 ECHR, in all but the rarest of circumstances."
Joanna Cherry QC MP, the chair of the Committee, said: "This Bill is designed to remove vital safeguards against persecution and human rights abuses, including the fundamental right to access a court. Hostility to human rights is at its heart and no amendments can salvage it. This isn't just about the rights and wrongs of the Rwanda policy itself. By taking this approach, the Bill risks untold damage to the UK's reputation as a proponent of human rights internationally. Human rights aren't inconvenient barriers that must be overcome to reach policy goals, they are fundamental protections that ensure individuals are not harmed by Government action. If a policy is sound it should be able to withstand judicial scrutiny, not run away from it."
Last week, the House of Lords Select Committee on the Constitution published an 18-page report on the Bill, which can be downloaded here.
It warns starkly that Clause 1(2)(b) of the Bill (which "gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country") is constitutionally inappropriate and could be interpreted as a breach of the separation of powers between Parliament and the courts.
The Lords Committee said: "The sovereignty of the UK Parliament is a long-established principle of the UK constitution. Nevertheless, there are constitutional consequences when legislation is enacted that significantly impacts the separation of powers. This is constitutionally inappropriate because it provides a potential precedent in which legislation could be used to effectively reverse factual conclusions, jeopardising the rule of law as well as the separation of powers."
The Lords Committee finds it is possible that the Bill's provisions are incompatible with the UK's obligations in international law under both the ECHR and the Refugee Convention.
"We reiterate that respect for the rule of law requires respect for international law. Legislation that undermines the UK's international law obligations threatens the rule of law. We invite the House to consider the consequences should the enactment of this Bill in its current form breach the UK's international obligations," the report states.
Clause 2 of the Bill prevents legal challenges against the safety of Rwanda, which the Lords Select Committee on the Constitution said would reduce access to justice and the protection of rights. The Committee asks the House of Lords to consider whether these restrictions are constitutionally appropriate.
In addition, the Lords Committee noted that Clause 5 of the Bill (allowing a minister to decide whether to comply with an interim measure of the ECtHR) "raises serious constitutional concerns" given the impact on the independence of the judiciary.
"We reiterate that where domestic and international law diverge, the duty reflected in the Ministerial Code to comply with international law remains. There would be significant consequences for the rule of law were ministers to determine that the UK was not to abide by an interim measure of the European Court of Human Rights in circumstances which placed them in breach of international law," the report emphasises.