Legislative scrutiny by the Upper Chamber – the Rwanda Bill

This post was contributed by Dr Eloise Ellis, Senior Lecturer in Law.

The Parliamentary progress of the Safety of Rwanda (Asylum and Immigration) Bill 2023-24 has shed light on the legislative relationship between the House of Commons and House of Lords, and in particular the latter’s role in effective scrutiny.

The Bill was introduced in response to R (AAA and Ors) v Secretary of State for the Home Department [2023] UKSC 42 where the UK Supreme Court held that ‘there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement…[and] that the Secretary of State’s policy is unlawful’. The explanatory notes (for the Bill as introduced to the Commons) stated it ‘seeks to confirm the safety of the Republic of Rwanda as a safe third country, thereby enabling the removal of persons who arrive in the UK under the Immigration Acts’ and to support this it is accompanied by a Treaty with Rwanda ‘to strengthen shared commitments on the protection of refugees and migrants’.

Having made it through the Commons unamended, where the Bill passed by 320 votes to 276 votes, despite some rebellions, in the House of Lords it has faced multiple defeats despite the Prime Minister encouraging the Lords not to ‘frustrate the will of the people’.  Sunak also described this as ‘emergency’ legislation’ which in the context of Westminster and the principle of parliamentary sovereignty, has no separate legal or official designation but is intended to be fast-tracked meaning that it passes through all the normal parliamentary stages in both Houses, but on an expedited timetable.  There are also legitimate concerns around rushing through law which in the words of the Home Secretary at Second Reading (in the Commons in December 2023) is ‘very much pushing at the edge of the envelope’ albeit ‘within the framework of international law’ and is constitutionally significant having been considered at Committee Stage in the House of Commons by a Committee of the Whole House.  Noting also that (as with the example of the recent Illegal Migration Bill, now Act) the Home Secretary was unable to make a ministerial declaration of compatibility under section 19 of the Human Rights Act 1998 upon introducing the Rwanda Bill.  The current version of the Bill (as amended by the Lords) states that it ‘gives effect to the judgement of Parliament that the Republic of Rwanda will be a safe country when, and so long as, the arrangements provided for in the Rwanda Treaty have been fully implemented and are being adhered to in practice’ which is clearly distinct from the original clause – i.e. this Act ‘gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country’ (clause 1(2)(b)). 

The process of Parliamentary ping pong now begins as the Commons and Lords try to reach agreement on amendments and the final text of the legislation. You can follow future developments on the Safety of Rwanda (Asylum and Immigration) Bill and more about fast-tracked or emergency legislation.