Charlotte – Year 12 Student
Editor’s note: Year 12 student Charlotte submitted this excellent essay in the recent Libra Essay Prize 2024. This popular annual competition is an excellent way for Sixth Form students to demonstrate that they have the makings of a scholar. It offers students a chance to prepare for the academic rigour required by university assignments and provides a great accomplishment to discuss on a personal statement or at an interview. This year, entrants were required to write an essay based on a one-word prompt: manipulation; conflict; catalyst; trajectory; temporary. CPD
In this essay, I will argue that whilst theoretically, UK citizens’ rights are well protected, due to a range of legislation and international obligations that exist to fit this purpose, the Rwanda Bill has demonstrated how easily these can be undermined and exploited. It exposes how the influence of the judiciary to protect human rights is restricted, limiting the scope for domestic legal challenge, and therefore, the Bill has acted as a catalyst to highlight how poorly UK citizens’ rights are protected.
The Safety of Rwanda (Asylum and Immigration) Bill was produced to evade the recent Supreme Court judgement that declared the Government’s proposed Rwanda asylum plan as unlawful. The scheme entails that some of the asylum seekers arriving to the UK would be sent to Rwanda, confirmed in the Memorandum of Understanding for the provision of an Asylum Partnership Arrangement, established between the UK and Rwanda in April 2022 {Cambridge University, 2023}. Recent evidence has alluded that Rwanda received £140,000,000 from the UK to confirm the agreement. In Rwanda, the asylum seekers would have their claims processed through the Rwandan asylum system, and would not be permitted to return to the UK. The policy has experienced many legal challenges, both domestically and internationally, for example in 2022, where an interim application was made to the European Court of Human Rights, leading to the plan being halted. This was on an account of a passenger who had claimed asylum in the UK, declaring that he was instructed he would be sent to Rwanda, despite claiming he had been a victim of torture. Subsequently, the European Court of Human Rights issued an interim measure, declaring that the passenger was prevented from being sent to Rwanda until his case had been decided by the UK domestic courts. Therefore, the case was escalated through three UK courts, beginning with the Divisional Court in February, who rejected the challenges to the policy, declaring it lawful, despite acknowledging that some of the removal decisions were procedurally flawed. On the 29th of June 2023, the Court of Appeal overturned the Divisional Court’s decision, declaring the Rwanda policy unlawful, as there was a high risk of refoulement. Ultimately, this meant that the Court of Appeal disagreed with the Home Secretary, Braverman’s, confirmation that Rwanda was a safe country, on the basis that the Arrangement signed guaranteed that asylum seekers would not face a risk to their life or freedom, risk of torture or inhuman treatment. This decision was upheld on the 15th of November 2023 by the Supreme Court, who confirmed the Court of Appeal’s decision, as they did not find Braverman’s assurances to be adequate or reliable. This was based on evidence such as Rwanda’s history of refoulement, as well as its non-compliance with Israel in an asylum arrangement previously established, which the Secretary of State argued was irrelevant to consider. Equally, further evidence developed the Supreme Court’s reasoning, such as receiving advice provided by officials that Rwanda has a poor human rights record, and that in 2018, Rwandan police had fired live ammunition at refugees protesting over food ration cuts – indicating that asylum seekers were not treated in ways that would conform to the Asylum Partnership Arrangement contents. The past failures of the Rwandan asylum system prove that the Supreme Court is correct to have substantial grounds to believe there to be a risk of refoulement. This demonstrates how the UK judiciary has some influence in protecting UK citizens’ rights, whether it be through acting upon an international court’s judgement, appealing lower Court decisions or declaring Government proposals to be unlawful – all in a combined attempt to protect human rights. However, ultimately this power is undermined by parliamentary sovereignty, which has the ability to defy this judicial judgement. This means that UK judges’ authority is diminished, as they have less power to protect the civil liberties of UK citizens than do judges in liberal democracies that have a codified constitution, and where these judges can oppose legislation if they see it as conflicting with constitutional law. Similarly, parliamentary sovereignty means that if the Bill becomes an Act, it will be immune from legal challenge, meaning that the judiciary are permitted from having any further influence. However, under Section 4 of the Human Rights Act, it states that if a court is satisfied that a provision is incompatible with a Convention right, they may make a declaration of incompatibility. {Legislation.gov.uk, 2013} This forces Parliament to revise the legislation, ultimately meaning that government minsters take civil rights and liberties into account more heavily. However, the declaration is not binding on Parliament to change the provision of primary legislation, and so therefore does not affect the enforcement or validity of the legislation, meaning Section 4 does not necessarily have any legal significance. Instead, the responsibility lies with Parliament to decide whether to amend the law. This demonstration of parliamentary sovereignty puts UK citizens’ rights in danger due to the extreme power that the Government possesses.
The Supreme Court also concluded that by following through with the policy, they would be acting against Section 6 of the Human Rights Act, which incorporates international obligations under the European Convention of Human Rights and Refugee Convention into UK law. Section 6 states that ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’. {Legislation.gov.uk, 2009} Here, a public authority refers to a court or tribunal, but excludes the House of Parliament or a person exercising functions in connection with proceedings in Parliament, from this definition. Subsequently, this means that Parliament is legally authorised to breach its obligations under the European Convention of Human Rights, amplifying how easily our human rights can be undermined, which the Rwanda policy has brought to attention. It has demonstrated that if Parliament can manipulate this Section with such ease, it can also threaten the protection of our human rights and how easily they can be modified or removed. The protection of our rights is further weakened as a result of the UK’s uncodified constitution, meaning like any legislation, the Human Rights Act 1998 is not entrenched, and can therefore be overturned by an Act of Parliament, which the Conservatives have proposed in the past: suggesting replacing the Act with a ‘British Bill of Rights’.
The Safety of Rwanda (Asylum and Immigration) Bill was introduced to the House of Commons on the 7th December 2023, declaring new legislation that addressed the Supreme Court’s judgement, to make it clear that Rwanda is a safe country for asylum seekers. Clause 1 illustrates that the Republic of Rwanda is a safe country, therefore giving effect to the judgement of Parliament, ignoring concerns from the domestic and international courts. {Safety of Rwanda (Asylum and Immigration) Bill, 2023} This Clause therefore illustrates the hypocrisy of the Bill: that Rwanda is declared as a safe country on the assumption it will stay truthful to the Asylum Partnership Arrangement. Therefore, it can be presumed that Rwanda will honour its international law obligations by remaining committed to UK requests of not deporting asylum seekers to unsafe third countries, whilst the UK is willing to breach its own international law obligations with the European Convention of Human Rights and Refugee Convention, by not conforming to its ideologies and principles. In addition, the Bill clarifies how Parliament is sovereign, and so the ‘validity of an Act is unaffected by international law’, undermining the UK’s loyalty to follow the European Convention of Human Rights. Clause 2 of the Bill addresses the Supreme Court judgement by saying that ‘every decision maker’, referring to the Secretary of State and court, must conclusively treat Rwanda as a safe country, and that any court or tribunal are banned from reviewing government decisions on the grounds that Rwanda is unsafe. The Bill removes the ability of a court’s jurisdiction, which raises questions about the compatibility of the Bill with the separation of powers and rule of law – both constitutional principles. Ultimately, the Bill limits the power of the judiciary to object to it significantly, reducing the power and influence of the courts, and subsequently meaning that Parliament’s sovereignty is confirmed. This Bill therefore presents the dangers of having an uncodified constitution, where Parliament can abuse its sovereignty to such an extent that it presents how weakly our rights are protected, as legislation can be produced that undermines any Acts or membership of Conventions with an aim to protect human rights. This idea is also amplified with Sunak’s willingness to resile from the conventions so that the Bill does not have to conform to this international law. He has declared to revisit ‘international relationships’ in an attempt to remove any obstacles to the Rwanda Bill, such as the European Court of Human Rights intervening. Equally, on the 3rd April 2024, he claimed that controlling immigration is more important than ‘membership of a foreign court’, further amplifying concerns that he would support leaving the European Convention of Human Rights. {The Independent, 2024}. This demonstrates the weaknesses in our protection system, in that a Prime Minister has the power to question withdrawing from the European Convention of Human Rights, which would weaken the protection of UK citizens’ human rights.
In conclusion, the Rwanda Bill has demonstrated how simple it is for Parliament to ignore its Convention membership or legislation created with an aim to protect human rights, as alluded to in the Bill, for example in Clause 1. Therefore, the Bill has brought attention to how easy it is for Parliament to amend UK citizens’ rights, due to their overarching power of parliamentary sovereignty that dominates judicial power and their attempts to ensure civil liberties are well protected.
Reference List
http://www.youtube.com. (2023). Why was the Rwanda Agreement unlawful, and will withdrawal from the ECHR resolve this? [online] Available at: https://youtu.be/tUyMknJ9AK0?feature=shared [Accessed 7 Apr. 2024].
legislation.gov.uk (2013). Human Rights Act 1998. [online] Legislation.gov.uk. Available at: https://www.legislation.gov.uk/ukpga/1998/42/section/4. [Accessed 8 Apr. 2024].
Legislation.gov.uk (2009). Human Rights Act 1998. [online] Legislation.gov.uk. Available at: https://www.legislation.gov.uk/ukpga/1998/42/section/6. [Accessed 8 Apr. 2024].
Safety of Rwanda (Asylum and Immigration) Bill. (n.d.). Available at: https://assets.publishing.service.gov.uk/media/65709c317391350013b03c36/Rwanda_Bill_as_introduced.pdf. [Accessed 8 Apr. 2024].
The Independent. (2024). Sunak hints that UK could leave ECHR if Rwanda plan blocked. [online] Available at: https://www.independent.co.uk/news/uk/politics/sunak-echr-rwanda-human-rights-b2523025.html?lid=8ill9akqti65&utm_medium=email&utm_source=braze&utm_campaign=Morning%20Headlines%20Newsletter%2004-04-2024&utm_term=IND_Headlines_Masterlist_CDP [Accessed 8 Apr. 2024].
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