Legislating lies and drafting dishonesty: the Safety of Rwanda Bill
The fundamental problem with the Safety of Rwanda Bill is its dishonesty: it lies about what it is doing and what its purpose is, and it is dishonest about its departure from basic principles.
Much ink has been spilt about whether the Safety of Rwanda Bill breaches international law or domestic constitutional conventions: those interested in such debates should follow the links in my previous post, and also read Professor Mark Elliott’s latest blog and the analysis by the Bingham Centre for the Rule of Law.
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.
The “judgement of Parliament”
The first lies that it tells are in clause 1. I shall skip over clause 1(1) for the moment, but clause 1(2)(b) asserts that
this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country.
That that is a lie is demonstrable, first, from clause 7(2), which takes out of the scope of the Bill anyone who is a national of Rwanda. Why does it do so? The only reason is that it is the real “judgement of Parliament” that Rwanda is a country that is not, in fact, safe.
Moreover, as is evident to anyone who has been paying any attention to the debate within the Conservative Party (for the time being, the majority party in the Commons), there is no sign in that debate that any MP in that Party, perhaps bar the odd eccentric, has been attempting to reach anything that can be described with a straight face as a “judgement” about whether Rwanda is a “safe country”: indeed, some MPs have been frank in recognising that for many there is strong evidence that it isn’t (but that they want to send asylum seekers there anyway).
Nor is “safe country” a rough and ready concept susceptible to rough and ready “judgement”: the Bill itself makes it clear that “safe country” has a precise and detailed meaning based on international law.
(5) For the purposes of this Act, a “safe country”—
(a) means a country to which persons may be removed from the United Kingdom in compliance with all of the United Kingdom’s obligations under international law that are relevant to the treatment in that country of persons who are removed there, and
(b) includes, in particular, a country—
(i) from which a person removed to that country will not be removed or sent to another country in contravention of any international law, and
(ii) in which any person who is seeking asylum or who has had an asylum determination will both have their claim determined and be treated in accordance with that country’s obligations under international law.
The idea that the majority of the Commons will have reached anything that can be described without giggling as a “judgement” on those questions is, frankly, risible. It is a lie.
Forcing decision-makers and the courts to hold that untruth is truth
Clause 2(1) then compounds the lie by ordering decision-makers to treat the supposed “judgement” of Parliament as setting out the truth even if every single piece of evidence demonstrates that it is untrue.
Every decision maker must conclusively treat the Republic of Rwanda as a safe country.
Courts are also bound to treat untruth as truth: clause 2(3).
As a result of subsection (1), a court or tribunal must not consider a review of, or an appeal against, a decision of the Secretary of State or an immigration officer relating to the removal of a person to the Republic of Rwanda to the extent that the review or appeal is brought on the grounds that the Republic of Rwanda is not a safe country.
Clause 2(4) then sets out a list of things courts are to ignore even if true. Those things to be ignored include any evidence, no matter how overwhelming, that Rwanda will not comply with its international obligations: and this - with what can only described as extreme chutzpah - in a Bill that admits on its very face and on its first page that this government cannot be confident that it is complying with the UK’s own international obligations.
Dishonest concealment of the truth
Clause 2 is dishonest in another way. To understand the dishonesty, you need to remember that the background to this Bill is that – as the Supreme Court explains in detail in its judgment (§§27-33) Parliament has, in legislation, repeatedly set out its policy that the UK should not send asylum seekers to countries where they run a serious risk of being tortured or killed, or from where they are likely to be sent to such countries (“refoulement”). As the Supreme Court concludes at §33:
Asylum seekers are thus protected against refoulement not only by the Human Rights Act but also by provisions in the 1993 Act, the 2002 Act and the 2004 Act, under which Parliament has given effect to the Refugee Convention as well as the ECHR.
The Bill changes that policy, but in a way that dishonestly fails to front up to what it is doing. An honest Bill would simply provide that the general prohibition on sending asylum seekers to countries where they run a serious risk of being tortured or killed, or from where they are likely to be sent to such countries, does not apply when they are being sent to Rwanda: but, instead, this Bill takes the dishonest approach of appearing to maintain the principle while actually undermining it by the device of asserting that Rwanda is a safe country (even if it is not) and requiring all decision-makers to treat it as such. The purpose of that device is to attempt to conceal the undermining of the basic principle, and the lack of any sustainable public justification for the different treatment of Rwanda beyond the desperate attempt to rescue the fortunes of the Conservative Party.
Lie about the purpose of the Bill
That brings me to the final lie I am going to point to, which is clause 1(1). That clause invites us to believe that
the purpose of this Act is to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by enabling the removal of persons to the Republic of Rwanda under provision made by or under the Immigration Acts
That is a lie. As has been (in this case accurately) pointed out by right wing critics of the Bill such as Policy Exchange and the “legal committee” of the ERG, the Bill does not – and cannot consistently with the UK’s membership of the ECHR – exclude the possibility of legal challenges before the European Court of Human Rights that are in the end likely to succeed, not least on the ground that in purporting to exclude judicial determination of whether Rwanda is in fact a “safe country” and the possibility of interim relief while that question is decided the Bill is inconsistent with Articles 3 and 13 ECHR. Indeed, the government itself puts its case on that point no higher than having a “respectable argument”, which means in effect “stateable without laughing, but certain to lose”.
Indeed, Policy Exchange argues that the Bill is defective because it fails (as the government has confirmed) to prevent applications for a declaration of incompatibility under section 4 of the Human Rights Act. According to Policy Exchange, that is unsatisfactory because
it would be very difficult to maintain the policy in the face of a declaration of incompatibility – especially one issued by the Supreme Court. In such a case, the Court will have had an opportunity to consider evidence [Ed: the horror!], to question Parliament’s judgement [Ed: again, the horror!], and (if it disagrees) to hand down a judgment that declares Parliament to have been wrong. By necessary implication such a judgment would amount to a denunciation of all past and future removals to Rwanda as breaches of Convention rights. The political pressure on the Home Secretary to discontinue removals would be very significant …
While it is hard to understand what the constitutionally or democratically principled (as opposed to partisan) objection could be to a judgment that made it clear to voters what the position was in relation to the ECHR and could only produce “political pressure” on the Home Secretary (which he would be free to reject, as long as he had Parliament’s, and ultimately voters’, backing, and if he did not, is pressure to which Policy Exchange would presumably agree he should yield), it is nonetheless true that while the UK remains party to the ECHR it is hard to see how this policy has a long term future – that is to say, how it could, conceivably, “prevent and deter illegal migration” in any plausible way.
As pointed out in my previous post on the Bill, the truth is that the real – the only – purpose of this Bill, as frankly admitted by Conservatives such as Suella Braverman and David Frost, is to offer some hope of a few flights taking place to Rwanda taking place before the election, even if, in the medium and longer term, everyone placed on those flights is going to have to be brought back. But that, of course, is a problem for the next government, which no Conservative MP really believes is going to be them.