Legal Fiction

Nicholas Reed Langen

‘The Rwanda bill is a legal fiction that makes the law look like an ass,’ Lord Anderson KC said in the final debate on the Safety of Rwanda (Asylum and Immigration) Bill in the House of Lords on Monday, ‘and those who make it, asses.’ Shortly afterwards, the Lords, which had sent amendments back to the Commons again and again and seen them rebuffed each time, passed the bill. The Commons won the game of parliamentary ping-pong, and Rwanda became a ‘safe country’ in the eyes of British law.

Legal fictions have long had their uses. Their usual function is pragmatic and technical, more often than not allowing the courts to sidestep insuperable difficulties. Sodomy was a capital crime in Victorian Britain but men convicted of it were rarely executed (though some were). Instead, the judge marked down ‘death recorded’ – a legal fiction – and commuted the sentence.

The Rwanda Bill is a different kind of legal fiction: not a tool of the courts that solves an injustice, but an assertion by Parliament that creates one. In the Supreme Court judgment R(AAA) v. Home Secretary, the justices unanimously found that removing asylum-seekers to Rwanda ‘would expose them to real risk of ill-treatment by reason of refoulement’. That is still true, despite what the British statute book now says.

Non-refoulement, defined by the UN as a guarantee that ‘no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment, or punishment and other irreparable harm,’ is a fundamental tenet of international law. Not only is the UK signatory to a raft of treaties, including the Refugee Convention, that prohibit it, but it is a part of customary international law. These jus cogens norms, which cover acts such as genocide and war crimes, bind countries whether they agree to them or not.

In passing this legislation, the UK has become a rogue state. The government issued a three-line whip to its MPs, ordering them to stay late on Monday night to pass the bill should it return from the Lords. Before that, the prime minister and his cabinet spent the day casting the House of Lords as a threat to democracy if they voted the bill down. This was another deceptive fiction of the government’s. There was no mandate from the people for this legislation. Nothing in the Conservative’s most recent manifesto, published three prime ministers ago, promised to send refugees to Rwanda or to break international law. Nor did the bill touch on questions of finance or public spending, where the Lords also defers to the Commons.

Instead, the norms and conventions of the British constitution would have justified the Lords putting amendments to the Commons indefinitely, or simply sitting on their hands and refusing to vote the bill through. No matter what Rishi Sunak might have pretended behind his sloganeering lectern, the Lords would have been protecting democracy, not subverting it.

It isn’t as if these legal and constitutional deceptions are in aid of a higher cause. All Rishi Sunak has is his absurd desire to ‘stop the boats’. Even if this legislation were likely to be effective in ending migration across the Channel, the alleged ‘threat’ of a few thousand people arriving on England’s southern coastline is no justification for violating international law.

Not only will the Rwanda Bill do nothing to change the situation in the Channel, it will do nothing to change public opinion of the government. While polls show there is some support for the legislation, especially among the government’s most fervent supporters, not even they think it will be effective. Yesterday, within hours of the bill’s being passed, 112 refugees squeezed onto a boat near Calais to cross the Channel. It got into difficulty and five people, including a seven-year-old child, drowned.

Opposition to the Rwanda deportation scheme will now return to the courts, with refugees relying on the few provisions in the bill that let them challenge their removal, or disputing the constitutionality of an act that contradicts a finding of the Supreme Court. No UK government has put a court in a position like this before, forcing it to consider whether Parliament’s sovereignty extends to denying reality.