Yesterday, our editor looked at the big-picture political game-playing behind this week’s big showdown over the Rwanda Bill. This morning, we’re going to look at the showdown itself.
Over the course of the next two days, the House of Commons will consider a lot of amendments. Many of these, having been tabled by the Opposition or the SNP, are unlikely to give the Government much trouble.
The same cannot be said for those led by Robert Jenrick, to which we should include one more led by Sir William Cash. All of these are signed by a large number of Conservative MPs, and aim to toughen the Bill in various ways:
(Numbers indicate the number given to the amendment in the above-linked document from the House of Commons.)
Beyond the rebels’ broader political claims about the Bill, the substantive questions here are whether they have identified a real problem, and whether or not their proposed solutions would work.
On the former, they have a case, on two counts – the overall legal picture, and the specific problem of individual challeges.
From the start, Downing Street has opted as much as possible to take the scheme forward without any big-picture reconsideration of the United Kingdom’s current legal framework, domestic or international. Instead, the legislation has been drafted in the hope of passing muster at the Supreme Court and, ideally, the ECtHR too.
At one point, this looked like it might work: the Government actually won its case at the High Court in 2022. It then lost at the Court of Appeal, but government sources were confident that this would be overturned by the Supreme Court. It didn’t pan out that way.
Given that, there is prima facie good reason to suspect that this latest attempt to thread the needle through very specific drafting will get tripped up somewhere in the courts.
Then there’s the operational side. The Rwanda scheme has already been ruled legal in principle, but that hasn’t led to a single aeroplane taking off. Partly this is down to the finding that Rwanda is unsafe, which the Bill aims to address. But even the original case that declared the scheme legal saw every individual appeal in it upheld.
There’s a danger that the judges end up treating Rwanda much as Cardinal O’Connor once spoke of Hell: obliged to believe in it, but not that anyone should go there.
The Bill seeks to address this, by restricting the grounds for appeal to claims that a specific individual would be in danger in Rwanda specifically; it would not do, for example, to deport refugees from Rwanda to that country, whatever promises Kigali made for their treatment. The rebels think it leaves far too many potential grounds for “suspensive” claims, i.e. challenges where deportation is stayed until a decision.
Again, that’s not an unreasonable fear. Our legal system excels at finding novel ways to uphold immigration appeals; in December, for example, one crime boss had his deportation overturned because the Home Office had failed to tick all the necessary compliance boxes when it came to the “consideration” of his human rights (not that his human rights were actually threatened).
In August, I summarised Rishi Sunak’s approach to illegal immigration as willing the ends without willing the means. With these amendments, the rebels appear to will the means. Whether or not they would work is, to an extent, unknowable until the Bill as they would have it actually faces legal challenge, but it certainly contains fewer points of failure on its chosen metrics.
That, however, is not the only thing that matters when it comes to deciding whether or not these amendments would work, or that they are a good idea.
First, there are tactical objections. The Prime Minister squared off the left of the party at second reading, and they are relatively quiet on the amendments front, but accepting the Jenrick and Cash amendments would almost certainly trigger a revolt on that wing which might, in itself, be enough to lose the Bill.
Sunak has also to consider the House of Lords. There is no time to use the Parliament Act, so in theory the upper house could block the legislation outright. If it amended it, and the Commons refused to accept the amendments, the Bill would fall on what is called “double insistence”.
The rebels are confident that Labour and the crossbenchers would yield; there is certainly a strong baseline reluctance on the part of many peers to block outright legislation from the Commons. In any event, they argue, what’s the point of a Bill which doesn’t work?
It’s a good question: arguably the worst result for the Government would be investing this much political capital in getting the Bill through, only for it to visibly fail. But ministers believe it will work, and in any event there are also obvious downsides to investing this much capital in the Bill and then losing it.
(Yes, you could spend the looming summer of crossings blaming the Lords. But how many voters are going to be impressed by that?)
Then there’s the broader question of the wisdom of this approach. Contra the handwringing of some commentators, none of it is unconstitutional. I’ve previously defended the deeming clause at the heart of the Bill, and gone to bat for ouster clauses; it is entirely within Parliament’s rights to amend or set aside previous legislation when passing new law.
It’s also understandable that MPs should respond to the increasingly impassable thicket of obligations and regulations that has sprouted around the processes of government by trying to slice the Gordian knot, as the rebel amendments would.
But notwithstanding the specifics of this case, that is a deeply suboptimal approach to fixing a very real problem. It avoids proper root-and-branch reform of how we govern in favour of an approach which maximises conflict and controversy by trying to carve out exceptions on a case-by-case basis.
This concern has been expressed on this site by Sir Robert Buckland, who has tabled several amendments aimed at softening the Bill, most obviously by making the deeming provision (that Rwanda is safe) conditional on the Secretary of State confirming that Rwanda has made the changes required by the new treaty, and thus that the facts on the ground have changed.
Buckland is no shrinking violet when it comes to legislative arcana; indeed, he’s one of few ministers in recent times who has actually passed an ouster clause into law, in the Judicial Review and Courts Act. One doesn’t need to agree with his overall assessment of the Bill to concede that this approach may simply open up more avenues for constitutional litigation, not to mention set unfortunate precedents.
To that, however, the rebels have an obvious rejoinder. For good or ill, the Safety of Rwanda Bill is already an attempt to slice the Gordian Knot. The question is simply whether the sword is sharp or not.