Rishi Sunak’s Rwanda Plan Risks Sparking a Constitutional Tug of War in the UK

Upmanyu Trivedi and Ellen Milligan
·5 min read
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(Bloomberg) -- Prime Minister Rishi Sunak’s attempt to block further court challenges to his migrant deportation policy raises major constitutional questions for the UK that may need to be thrashed out by judges before any flights can leave for Rwanda.

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Legislation introduced by the government last week seeks to overcome a Supreme Court ruling against the policy by unilaterally declaring Rwanda a safe country to send migrants. It would also remove “almost all grounds” for asylum-seekers to fight their deportation legally, according to a Home Office paper published Monday.

While much of the political debate has focused on how members of the Conservative Party’s anti-immigration right don’t think the bill goes far enough, some constitutional lawyers say it could nonetheless upend the relationship between Parliament and the courts. In short, they say, the bill asserts supremacy over the judiciary at the expense of rights established over centuries of English Common Law.

“This bill is extraordinary — for all the wrong reasons,” said Rashmin Sagoo, director of Chatham House’s international law program. “It has precedent-setting potential. It has long-term implications for the UK’s legal leadership and reputation. And it is a reminder that democracies are not immune from attacks on the rule of law.”

Such criticism highlights the stakes as Sunak tries to quell a Tory rebellion ahead of a likely election next year in which public dissatisfaction with immigration looms large. Rather than accept the Supreme Court’s unanimous ruling that Rwanda was an unsafe destination for migrants due the risk of them being sent back to the countries they were fleeing, the prime minister instead pushed ahead with “emergency” legislation to deem Rwanda “safe” and cut the courts out of subsequent discussions.

In a sign of the political pressures facing Sunak, two competing blocs of Tory MPs on Monday issued stated views about the prime minister’s proposed legislation. Legal advice to the right-wing European Research Group of lawmakers found the bill “doesn’t go far enough” and will need “very significant amendments” to ensure it achieves its goals.

The One Nation group of Tory moderates, on the other hand, said it had “real concerns” about the plan and warned Sunak against any attempts to amend the bill “in a way that would make it unacceptable to those who believe that support for the rule of law is a basic Conservative principle.” Edward Garnier, a peer and former solicitor general who advised the One Nation group has previously called the legislation “political and legal nonsense,” saying it was like declaring “all dogs are cats.”

The bill will face its first test in the House of Commons on Tuesday evening, when MPs will vote on its second reading, typically a consideration of the legislation’s general principles. With the One Nation group advising its members to back the bill at this stage, all eyes are on whether ERG members will oppose it.

If the clash between competing factions is reminiscent of the internecine warfare that beset the Conservative Party during the years of negotiating Brexit, so too is the conflict between the government and the judges, with the executive in recent years bringing in specific policies to close down the routes to court for people to challenge government decision-making.

In 2016, Theresa May’s Tory government lost a court case over Parliament’s role in Britain’s divorce from the EU , sparking a backlash in the right-wing press, with the Daily Mail branding the judges “enemies of the people.” Ex-Prime Minister Boris Johnson also suffered an embarrassing reversal when the Supreme Court ruled in 2019 he acted unlawfully by suspending parliament. The judges again became a lightening rod for right-wing criticism.

The new bill will effectively mean courts are not permitted to find Rwanda unsafe — the main issue that the Supreme Court ruled against Sunak on. While there will be some wriggle room for individual challenges, ironically their best course of action may be to head for the European Court of Human Rights.

“This is the closest I think that Parliament has ever come to specifically directing the courts as to how particular cases must be decided,” said John Gould, a lawyer at Russell-Cooke.

The UK has an unwritten constitution, but in reality, the law is a result of centuries of interplay between the judiciary, Parliament and the government. With the new bill threatening to upend that, especially if it is strengthened as the ERG would like, it could be open to challenge in the courts if it becomes law.

“The assumption that Parliament is entirely sovereign is only that – an assumption, which the courts have long indicated could be revisited in the event that Parliament did the unthinkable,” four senior barristers, including former Tory Attorney General Geoffrey Cox, wrote in a letter to the Telegraph on Monday. “Legislation which mandated the removal of someone, without the right of appeal, despite clear evidence that this would result in them suffering death or serious and irreversible inhumane treatment, would test that assumption.”

Sunak’s administration published a summary of its own legal advice on Monday, an unusual move to win over potential rebels. The government argues the legislation would lift most legal barriers that have blocked deportation flights, as asylum seekers will have “very limited scope” to appeal. Without that avenue of appeal, there wouldn’t be a “clear legal basis” for the bill, according it said.

“The government’s approach is tough but fair and lawful,” according to the document. “It has a justification in the UK’s constitution and domestic law, and it seeks to uphold our international obligations.”

While Sunak needs to get the legislation through the House of Commons to show he still controls a governing majority, he has stopped short of making its passage a test of confidence in his leadership.

Both politically and legally, Sunak is “trying to thread an impossibly tricky needle,” said Jonathan Thomas, a migration researcher at the Social Market Foundation think tank. “This risks causing, and exacerbating, multiple fractures in the political and legal framework of the UK.”

--With assistance from Stuart Biggs.

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