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The Rwanda Bill: A Dicey Affair with Constitutional Principles

Nouh El-Ouaz*


Introduction

This article aims to provide a concise critique of the government's intentions to maintain the Rwanda policy[1] despite the Supreme Court’s ruling in AAA.[2] AAA is principally concerned with non-refoulement, i.e. ‘requir[ing] that refugees are not returned to a country where their life or freedom would be threatened’.[3] The scope is confined to certainty, equality, and judicial deference under the Diceyan Rule of Law (‘the RoL’). Overall, the article concludes that any legislation directly countering the Supreme Court’s judgment would undermine the RoL on all three concepts, especially if passed through Parliament too quickly.

 

Certainty

The Safety of Rwanda Bill[4] undermines the Diceyan avoidance of ‘wide, arbitrary, or discretionary powers’[5] on two interpretations.


Regarding the first, the Government contradicting the courts (or the opposite) on a factual dispute using legislation would indicate that one of those decisions is incorrect and arbitrary, suggesting an unjustified abuse of discretion by a branch of government. The ‘emergency’[6] nature of the Bill undermines arguments that the ‘structural changes and capacity-building needed to eliminate [refoulement] risk’[7] will be sufficiently addressed. Although Parliament is sovereign and the successful passage of the Bill would arguably reflect the democratic will of British citizens, Parliament could equally legislate that ‘all blue-eyed babies should be murdered’.[8] It would be circular to solely use parliamentary sovereignty to determine the constitutionality of the Bill. Regard for the RoL is necessary and the legislative contradiction of judicial determinations indicates arbitrary decision-making by one of the branches. Allowing greater time for the scrutiny to address structural issues or the complete desertion of the Bill would prevent any uncertainty stemming from this contradiction.

 

Concerning the second interpretation, individuals are prevented from having a ‘security of expectations’[9] in the law considering the policy’s inconsistency. Where laws cannot ‘be understood by all subjects’[10] and reasonably followed because of this understanding, ‘security in economic, governmental, and social life’[11] cannot be sustained. This is significant as the speed with which the Bill is progressing through Parliament indicates the potential for public confusion on which laws apply. Arguably, the principle of Parliament’s ‘right to make or unmake any law’[12] provides sufficient security. However, this does not justify arbitrary discretion and the imposition of an ‘elected dictatorship’.[13] Failing to provide certain laws which can be complied with will undermine the purpose of law whether made or unmade. Alternatively, it suggests arbitrary discretion from the judiciary which the legislature is remedying. Overall, the Bill undermines certainty.

 

Equality

Subjecting all individuals ‘to the ordinary law of the realm’[14] is undermined by the Government’s proposed legislation. Indeed, Re M[15] indicates that, in matters concerning the equal treatment of asylum seekers, the executive does not have the prerogative to act notwithstanding court orders. Re M[16] is especially significant considering that the Bill has provisions to disregard interim injunctive measures in the ECHR which would prevent the removal of asylum seekers to Rwanda.[17] Although Re M[18] can be distinguished as the Government did not have legislative backing, asylum seekers would still not be ‘subject to the ordinary law of the realm’[19] as injunctions from the ECHR would apply in all other circumstances. Furthermore, the Bill’s disapplication[20] of the Human Rights Act,[21] while technically a legal expression of the will of the public through a democratically elected Parliament, shows further derogations from British constitutionalism as individuals are treated unequally seemingly arbitrarily. Undoubtedly, as Young describes, there should be scope for democratic dialogue between the legislature and the judiciary.[22] Dialogue requires scrutiny. The speed at which the Bill is passing through Parliament cannot adequately provide said scrutiny.

 

Judicial Deference

The Rwanda Bill undermines Diceyan protections of constitutional principles through ‘judicial decisions determining the rights of private persons’.[23] This is tenable on two grounds.


Regarding the first, the Supreme Court cannot fulfil its protective function if its decisions are expressly reversed. Contrarily, Barnett suggests this view ‘demonstrat[es] a faith in the judiciary which is arguably not sustainable nowadays’[24] considering the quasi-codification of rights in the Human Rights Act.[25] This argument is insubstantial. As Lord Reed outlines, rights preserved in the Act are ‘too inspecific to provide the guidance which is necessary in a state governed by the rule of law’.[26] This is significant in indicating that the Bill potentially frustrates the continued importance of the common law in protecting constitutional principles.

 

Concerning the second ground, the judiciary’s finding of ‘a lack of independence in the [Rwandan] legal system in politically sensitive cases’[27] indicates complacency in allowing individuals to be tried in a system which does not respect the RoL. Deferring judgment to a system which has been found to not respect the independence of the judiciary suggests an acceptance of the legality of a jurisdiction which is contrary to British constitutionalism. Although the legislation would provide a legal basis to argue the contrary, de jure and de facto should not be conflated. Furthermore, deference to the Rwandan system does not protect the constitutional principles of the UK, as their decisions will not directly impact the British jurisdiction. Consequently, the plan does not have the potential to be constitutional, neither literally nor theoretically. Overall, the Rwanda Bill is contrary to the Diceyan preference of judicial deference.

 

Concluding Remarks

Thus, the Rwanda Bill undermines the Diceyan RoL. Greater scrutiny or the Bill’s abandonment is necessary to uphold constitutional principles. It would create uncertainty through arbitrariness, disregard equality, and undermine judicial deference to advance constitutional principles. This article has favoured conciseness over breadth. There is room for further discussion into, for instance, other conceptions of the RoL, a deeper analysis of the democratic dialogue, and the sustainability of modern judicial deference.


*Nouh El-Ouaz is an Article Editor of the City Law Review. He is interested in Public Law, Human Rights Law, and Media Law.


[1] See BBC, ‘What was the UK's plan to send asylum seekers to Rwanda?’ (BBC.com, 16 November 2023) <https://www.bbc.co.uk/news/explainers-61782866> accessed 17 November 2023.

[2] R (on the application of AAA and others) v Secretary of State for the Home Department [2023] UKSC 42.

[3] ibid [5].

[4] Safety of Rwanda (Asylum and Immigration) HL Bill (2023-2024) 41.

[5] AV Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915) 110.

[6] See William Wallis, Anna Gross and George Parker, ‘Sunak Pledges to Change the Law After Supreme Court Rules Against Rwanda Policy’ (FT.com, 15 November 2023) <https://www.ft.com/content/2ff756e4-9719-44f6-b4db-1955ae90ac64> accessed 17 November 2023; cf Civil Contingencies Act 2004, s 1.

[7] AAA (n 2) [105].

[8] Leslie Stephen, The Science of Ethics (1st edn, Cambridge University Press 2012) 143.

[9] Scott Veitch, Emilios Christodoulidis and Marco Goldoni (eds) Jurisprudence: Themes and Concepts (4th edn, Taylor & Francis Group 2023) 173.

[10] ibid 174.

[11] ibid.

[12] Dicey (n 5) 3.

[13] HL Deb 29 January 2024, vol 835, col 1033.

[14] Dicey (n 5) 114.

[15] Re M [1994] 1 AC 377.

[16] ibid.

[17] Safety of Rwanda Bill (n 4) cl 5.

[18] Re M (n 15).

[19] Dicey (n 5) 114.

[20] Safety of Rwanda Bill (n 4) cl 3.

[21] Human Rights Act 1998 (HRA 1998).

[22] Alison L Young, Democratic Dialogue and the Constitution (Oxford University Press 2017).

[23] Dicey (n 5) 115.

[24] Hilaire Barnett, Constitutional and Administrative Law (13th edn, Taylor & Francis Group 2019) 66.

[25] HRA 1998.

[26] Osborn v Parole Board [2013] UKSC 61 [56].

[27] AAA (n 2) [93].

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