Paul Buckingham, Blog, philosophy, 19th century newspaper articles, photos of Annecy and Prague

Dear Mr Tracey

Notwithstanding or To deem – verb: to regard as so that which is not

I have been following the Rwanda debate very carefully and thought I would let you have my views on the matter.

The vituperative letter sent by Suella Braverman to Rishi Sunak following her sacking accused him of many failings. In particular she said that he had failed to accept her advice to bring forward legislation using the word ‘notwithstanding’ to get over the difficulties with the Rwanda policy.

She said that if Mr Sunak wasn’t actually prepared to abandon the ECHR then, in order to make the Rwanda process work, they would have to “exclude the operation of the European Convention on Human Rights, the Human Rights Act and other international law that had thus far obstructed progress on this issue”.

Which, when stated so baldly, is quite extraordinary. It tells us either that the law which we have is so very badly drawn that it should be swept aside or that we have an incompetent government which should be swept aside. So let’s look at the detail.

Now of course, the Supreme Court in its judgement has made it clear that the Rwandan government’s failings in terms of being able or willing to comply with the Memorandum of Understanding they had signed with Pretti Patel, then home secretary, went much wider than the ECHR and its domestic equivalent, the Human Rights Act 1998. As they pointed out, non-refoulement – not being sent back to where you came from - is a core principle of international law, indeed, although they did not state so categorically, they suggested that it may be a right which is not dependent on any particular treaty provision, but which stands alone as an established principle of international law.

Asylum seekers are though protected against refoulement by several international treaties ratified by the UK. As the Court pointed out, they include article 33(1) of the United Nations 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“the Refugee Convention”) and article 3 of the European Convention on Human Rights (“the ECHR”), among others. Parliament has given effect to both the Refugee Convention and the ECHR in our domestic law. Asylum seekers are protected against refoulement by the Human Rights Act 1998, section 6 of which makes it unlawful for the Home Secretary to remove asylum seekers to countries where there are substantial grounds to believe that they would be at real risk of refoulement contrary to article 3 ECHR.

Further protection is provided by provisions in the Asylum and Immigration Appeals Act 1993, the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants etc) Act 2004, under which Parliament has given effect to the Refugee Convention as well as the ECHR.

Now it is obvious that a major reason for the steps taken to involve Rwanda as the ultimate destination is that there was the hope amongst certain members of the right wing of the Conservative Party that it would lead to our having to remove ourselves from the ECHR, something they have wanted for a long time. It’s European don’t you know! The Court, however, has pointed to that much wider set of international and domestic law which would have to be ignored or ‘deemed’ to have been complied with in the proposed new make-believe world.

Fortunately, It seems that the new Home Secretary is not keen on the international loss of reputation which pulling out of the ECHR would cause and neither is our present Lord Chancellor, Alex Chalk KC. I suspect that they are more inclined to uphold the rule of law than their respective predecessors, Suella Braverman and Dominic Raab. So then, what to do?

Mr Sunak’s response so far has been to say that the agreement with Rwanda which had, for some reason, carelessness(?), been only a non-binding ‘memorandum of understanding’ would be replaced by a treaty binding in international law. In addition, he would introduce emergency legislation to Parliament which would simply confirm that Rwanda was indeed a safe place for asylum seekers to be sent, a place which would comply with all of the requirements of international and domestic law in respect of asylum seekers.

In other words a very big ‘notwithstanding’: it would deem the conditions in Rwanda, the attitude of the Rwandan government and those implementing the policy there to be satisfactory and would deem their capability to comply with the law as acceptable - whether or not this was true. Arguably, this would have effect in domestic law, but obviously would involve our trying to drive a coach and horses through our international law obligations. But we cannot ‘deem’ our way out of those. It is also questionable whether it works in domestic law, despite the idea of the supremacy of Parliament in our constitutional arrangement.

The Supreme Court said that all the evidence they had been given showed that when supposedly complying with its international obligations in the past, Rwanda had fallen badly short. The evidence showed that it has a poor human rights record. Indeed, only two years ago, in 2021, the UK government criticised Rwanda for “extrajudicial killings, deaths in custody, enforced disappearances and torture”. UK government officials have raised concerns about constraints on media and political freedom.

And then, UNHCR’s evidence is that there are serious defects in Rwanda’s procedures and institutions for processing asylum claims. These include: (i) concerns about the asylum process itself, such as the lack of legal representation, the risk that judges and lawyers will not act independently of the government in politically sensitive cases, and a completely untested right of appeal to their High Court, (ii) the surprisingly high rate of rejection of asylum claims from certain countries with which the Rwandan government has sympathies which shows obvious racial or ethnic prejudice (iii) Rwanda’s practice of refoulement, which has continued since the Memorandum of Understanding was concluded (when Pretti Patel was in office), and (iv) the Rwandan government’s failure to understand the requirements of the Refugee Convention which include accepting that those arriving with false papers are nonetheless entitled to claim that they qualify for asylum.

So in the light of the evidence the Supreme Court has already seen and cannot now unsee, how would they approach a claim that Parliament was simply incapable of passing a valid statute which said that Black was White? If, when Lady Hale was the president, they managed to find that Boris as Prime Minister had unlawfully advised the Queen to use the royal prerogative to prorogue Parliament and so declare that supposed prorogation to be void, it will be interesting to see the next stage in the contest between populist politicians and the highest court in the land attempting to preserve the Rule of Law. Already, the Bar Council and, I believe, the Law Society are saying that such law would be against the whole concept of the Rule of Law.