Rwanda: This is what happens next

Everything you need to know about the battle for the country's soul.

Photo by Umesh Soni on Unsplash

They're trying to sound tough, but the reality is that they are double square fucked.

It's all set up now. The road ahead is relatively clear. This is Brexit 2.0. What first played out as tragedy will now be conducted as farce. 

We're about to go through it all again, in miniature form: the attacks on immigrants, the fairy-tale reliance on will rather than reality, the confused insistence about parliamentary sovereignty, an assault on the courts and international institutions, a battle for and against liberalism. But one part will be different. This time they’ll fail.

This is how it'll play out. After this week's Supreme Court ruling finding the Rwanda policy to be unlawful, the government is going to publish two documents. The first is a treaty and the second is a piece of primary domestic legislation. This is Rishi Sunak's "emergency law". Then, if the European Court of Human Rights gets involved, he'll do whatever's necessary to stop "a foreign court" blocking the flights.

It sounded very tough when he announced it at a press conference on Wednesday. But it is all baseless and empty. On every level, at every stage, it fails by virtue of timescale, logic and legal mechanism.

We don't know what's going to be in this legislation, but the basic outline seems pretty clear. First, it will seek to address the specific concerns the Supreme Court had about Rwanda. Second, it will aim to seal it off from legal challenge. This last part is Suella Braverman's 'notwithstanding' provision - basically that you get to just write a law and then chuck a disclaimer on it ruling out all the ways it contradicts a previous law. A child tearing apart the toys her parents bought her for Christmas and then demanding they get her new ones.

The Supreme Court ruling was based on refoulement: the risk that a refugee will be sent back to their country of origin. It's a profound principle of compassion and concern for the human spirit - the absolute moral requirement that we never put someone who has escaped persecution back into the hands of their persecutors.

In 1939, a ship called the St Louis set sail across the Atlantic carrying 900 Jewish passengers. It went to Cuba, then Miami, then Canada. In each location, the boat was stopped. The people onboard could see the lights of the city - of survival - twinkling just out of reach. In each location, they were rejected and sent back to Germany. A third of them were subsequently murdered in the Holocaust.

That's why these provisions exist. That's why the Refugee Convention was written. Braverman likes to wax lyrical about protecting Jews when it helps her exploit division at home. But her entire approach is to undo the legal framework put in place to prevent anything like the Holocaust happening again.

The main substantive issue in this whole debate is how the government will write a treaty that addresses the Supreme Court concern about refoulement. You really can forget all the rest - notwithstanding provisions, the House of Lords, angry Braverman articles. The only meaningful issue is on that central point. But in this crucial area, the government response seems to be deranged, unrealistic, desperate, and contradictory. 

First, it will rewrite the arrangement to provide reassurance on refoulement. And second, it will help Rwanda beef up its asylum measures so that the Supreme Court has confidence in them. 

At one stage, government officials were briefing Robert Peston that Rwanda would keep all successful asylum seekers and send failed ones back to Britain. That's some proper galaxy-brain through-the-looking-glass shit. It would hand the UK all the problem cases involving long-drawn out deportation processes and expensive hotels. And it would hand Rwanda all the easy cases of turning applicants into regular citizens who could go about their lives and pay taxes.

In a matter of hours, the plan changed. Now it seems that all asylum seekers sent to Rwanda will be able to stay. Asked if even failed asylum seekers would be kept in Rwanda on the World at One yesterday, the chief technical advisor to the Rwandan minister of justice said: "Yes. They will be given leave to stay on other grounds and they will not be removed or deported from the country… We are ready and willing to take in as many as the UK will be able to send."

This changes the Rwandan plan into something else entirely. It is now going to become an offloading centre for all UK asylum claims and it will keep everyone sent to it, regardless of the validity of their asylum claim.

It's honestly hard to know what to make of these comments. Are they just making shit up, saying whatever comes into their heads to get Sunak out of trouble? Have they gone mad? Or are they really planning to implement them?

Let's imagine it's the last option, unlikely as it is. That would still probably not satisfy the courts.

The Supreme Court ruling did not simply state that Rwanda's asylum system was poor. It stated that Rwanda could not be trusted in its commitments. It repeatedly cited a deal the country had done with Israel to take in Eritrean and Sudanese asylum seekers and then proceeded to break. It is likely to come to the same decision this time.

The government's second approach is to say that it has sent officials to Rwanda to fix its asylum system. "We anticipated this judgement as a possible result," home secretary James Cleverly told the Commons on Wednesday. "We have been working with Rwanda to build capacity."

His problem is that the Supreme Court ruling was not just about capacity. It was about the entire system. Decisions were made by Rwandan politicians, rather than officials or judges. Some asylum claims were summarily rejected without written reasons. The only part of the system that involves judges rather than politicians is the appeals process, which is a shame because there has literally never been an appeal. And even if there were, the court found that the judiciary was not fully independent and was therefore likely to be coerced into following the government line. 

Perhaps Cleverly's 'capacity' work is going to overhaul the entire Rwandan asylum system, introduce officials rather than ministers to conduct it, establish a viable appeal process and then create a true separation of powers in Rwanda's constitutional settlement. Or perhaps, you know, it won't.

The emergency legislation will then presumably do what Braverman and all those madcap Tory MPs want it to do: introduce notwithstanding provisions blocking it from legal challenge. 

This is a genuine act of constitutional vandalism. It threatens to turn the whole of our system into a joke. Governments would pass laws, then write future laws which ignored the previous laws they'd made, threatening to corrode the whole notion of legality. And it would take place as a direct snub to the judgement of the Supreme Court, the highest possible judicial authority in the country. 

The bigger immediate problem is that it will not work. No.10 can probably just about find some form of very concrete and specific wording that will exclude domestic legislation. This will take care of the Asylum and Immigration Appeals Act 1993, the Nationality, Immigration and Asylum Act 2002 and others which mention non-refoulement. But it will not do anything about international treaties, because - and this really shouldn't need explaining - they were agreed with other countries at the international level.

We're back where we were during Brexit, with hot-head know-nothing MPs and ministers insisting that they can write legislation to change global reality, without any recognition of the limitations of their power. They have confused legislation for daydreams and clauses for omnipotence.

Non-refoulement is in several treaties, including the European Convention of Human Rights (ECHR), the Refugee Convention, the UN Convention against Torture and others. We'd have to negotiate them all over again with other countries, which is not going to happen. Or we'd have to pull out. 

In some cases,that would be a mere moral calamity. In others, it would have severe domestic consequences. 

The ECHR is baked into the DNA of the Good Friday Agreement. It's not just a line that you can delete. It ensures that "all sections of the community can participate and work together successfully" in the Convention and that there is "direct access to the courts and remedies for breach of the Convention". If you're going to leave the ECHR, you have to scrap the Good Friday Agreement and upend the Northern Ireland peace process.

It's also baked into the Brexit Trade and Cooperation Agreement (TCA) signed with the EU in 2020, which allows Europe to suspend police and security arrangements - including extradition - if Britain leaves. Leaving it would basically reintroduce the threat of No-Deal Brexit. 

Even if all these problems were surmountable, the government would still have to get the legislation through parliament. In the case of the Commons, that probably wouldn't be a problem. In the case of the Lords, it would be. That's because, unlike the Commons, the Lords has independent-minded non-party members, no government majority, and control over its timetable. 

In most scenarios, the Lords will back down. They have to: they're unelected. Under the Salisbury Convention, they never oppose the government plan if it's in the manifesto. 

But here's the thing: it isn't in the manifesto. In fact, the 2019 document states: "We will continue to grant asylum and support to refugees fleeing persecution." So in fact the manifesto arguably commits the party to the exact opposite of what it is currently proposing. 

The Lords are therefore entitled to oppose the bill. And indeed, it's exactly the kind of thing they like to oppose: constitutional vandalism which erodes the rule of law. Generally speaking, it's not the type of shit peers are into. 

Usually, they can be overridden. But not this time. The reasons for that are technical but also delicious. 

The Parliament Act allows a government to ignore Lords opposition if a bill has been passed by the Commons in two successive sessions. There's also one other element. It has to be sent to the Lords one month before the end of the session. It's all needlessly complicated - welcome to the exciting world of parliamentary rules - but what it adds up to is that the Lords can only delay a bill for 13 months. They can't kill it.

So here's a fascinating bit of electoral maths. The latest that parliament can dissolve for the next election is December 17th 2024. So if this legislation was going to be passed in time for the election, it would have to go to the Lords no later than November 17th 2024. And according to the Parliament Act timescales, that means that it would need to have its first reading in the Commons Chamber on November 17th 2023. 

And that's… Well, that's today. Unless they get that thing into the Chamber sometime in the next few hours, they're out of time and the Lords has the upper hand. 

So that's where we are. Sunak is talking tough. But peer a little deeper and he is fucked in nearly every way there is for a man to be fucked: legally, logically, practically, legislatively, politically and constitutionally. All these avenues are blocked off. It's checkmate.

Things can change and there may be something I've overlooked here - let me know if you think I have. But it's really hard to see any way in which those flights take off before the general election. They’re going to fight their little Brexity culture war again. But this time they’re going to lose.