The Rwanda Safety Bill has made it through the House of Commons. A government with an overall majority was never in nearly so much jeopardy of losing a vote on this flagship legislation as some news coverage suggested after Conservative backbenchers had tried to amend the bill.
But the legislative process in the UK parliament is a game of two halves. The bigger parliamentary challenges for the Bill may be yet to come – and the challenges will now come from the opposing perspective to those of the last few days. The Commons debate was framed by the backbench questions about whether the Bill goes far and fast enough in restricting or removing the rights of individuals to appeal a decision to remove them to Africa. The argument about international law between the government and its backbenchers was about whether it would be preferable to grant government ministers the right or the obligation to ignore interim rulings of the European Convention on Human Rights. But in the House of Lords, peers may be just as interested in how far the Bill protects rights to appeal, the rule of law and Britain’s obligations under international law – rather than whether it does enough to remove them.
Some Conservative MPs will insist that an unelected chamber should not try to impede the elected house. The PM himself held a press conference just to suggest that opposition in the House of Lords would “frustrate the will of the people”. The upper house does have an established practice, the Salisbury Convention, that it would not vote down legislation for which the government has secured a mandate in its general election manifesto. But that convention does not apply to the Rwanda Safety Bill. The 2019 Conservative manifesto contains no hint of the Rwanda policy. It does, however, contain several commitments that the new legislation appears to breach: in its pledges to “ensure judicial review is available to protect the rights of individuals against an overbearing state”; to protect those rights “no matter where in the world you and your family come from”; and to “continue to grant asylum to refugees fleeing persecution”.
Debates about whether to maintain, reform or abolish the House of Lords go back decades. The 1911 Parliament Act – the most serious constitutional crisis between the two Houses – firmly established the primacy of the House of Commons. So the Lords has lacked the power to veto legislation for over a century now. Instead it has the powers to scrutinise and to propose amendments. If no consensus can be found, it has a delaying power of one year – but could not stand in the way if the Commons passed that bill again.
Given the title and purpose of the Bill, one core focus for the Lords debate should be whether Rwanda is safe – and what steps parliament needs to take to ensure that it is so. There are two alternative perspectives on the purpose of the Rwanda Safety Bill. The official government line is that it accepts the UK Supreme Court findings – that the scheme was unlawful because of the defects in the Rwandan asylum system – and so has been working diligently to put them right. Yet what the legislation as currently drafted does is deem that Rwanda must be considered safe, however safe or unsafe it actually is.
The most important principle for House of Lords scrutiny could be that Rwanda should be deemed safe only if it actually is safe – that the Bill should only pass in a form where the safety of Rwanda reflects the facts on the ground, rather than a legal fiction where courts and civil servants are obliged to deem Rwanda a safe country to which the UK can remove asylum-seekers.
That is the view of the cross-party Lords International Arrangements Committee, the first parliamentary body to scrutinise the new UK-Rwanda Treaty. Its judgment is that the Treaty should not be ratified until the associated reforms have been fully implemented. That would seem a common sense approach, if the motivation is to ensure that Rwanda is safe before Parliament declares that it must be considered so. It would be less attractive, however, if the motive is to send the first flights anyway – whether safe or not – given the political pressures of an election year.
The simplest way to achieve this might be to remove from the bill attempts to oust the UK courts from considering this question of Rwanda’s safety. The government would then be able to proceed with its scheme by presenting the evidence of the impact of its Treaty and reform programme in court. Or there may be other ways to oversee the Treaty and the Rwandan asylum reform process that would give Parliament sufficient confidence that it has assessed Rwanda’s safety before directing the courts to follow its lead.
As an unelected chamber, the House of Lords has only limited powers under the constitution. But while it remains in place, it is legitimate for the Lords to those powers. If the aim of the Rwanda Safety Bill is to remove people to Rwanda in a way that is safe – under British law and the Refugee Convention – then peers should consider whether substantive amendments are needed to ensure the bill allows a proper assessment of that core question. That will entail serious dialogue between the two houses to find consensus. If the Commons repeatedly rejects amendments out of hand, the Lords could then consider using its delaying power as leverage to ensure that constructive efforts to improve the bill are taken seriously – and it is allowed to fulfil its constitutional role.
Rwanda Safety Bill has made it through the House of Commons, but the legislative process in the UK parliament is a game of two halves
