The government of the United Kingdom could have won the Supreme Court appeal on its Rwanda removals policy, but it effectively chose not to.
The real failure here is that the government did not take policy-making or law-making seriously. The Rwanda policy was always meant for political and media consumption, rather than to make any actual difference.
The government was told one year ago, in what was a prescient report by a House of Lords committee, that the memorandum of understanding (MoU) with Rwanda was too flimsy a basis for the envisaged exercise.
MoUs are not legally binding, and they are not intended to be legally binding. They are instead statements of intent and expressions of goodwill. The MoU and the payments of the UK government would provide reputational and financial incentives for Rwanda to comply with its international obligations for any asylum seekers relocated there, but no more. There would be no substantial, enforceable obligations. And this was by design: for it is in the nature of MoUs.
And in the appeal decision handed down by the Supreme Court on Wednesday it was held that the MoU was indeed too weak a basis to ensure that Rwanda would comply with its legal obligations towards the relocated asylum seekers. Thanks to the impressive intervention of the United Nations High Commissioner for Refugees, detailed material was put before the court as to Rwanda’s non-compliance with its international obligations. On the scales of justice in this particular case, the mere words of the MoU were outweighed by hard evidence.
It would not have been impossible for the MoU to have been converted into a treaty over the last year. A similar exercise was conducted 10 years ago when the then home secretary, Theresa May, was faced with the courts refusing to deport Abu Qatada to Jordan because evidence obtained through torture could be used against him. The United Kingdom negotiated a resolution with Jordan which meant such evidence could not be used. Qatada was then deported—not in spite of the European Convention of Human Rights (ECHR), but in compliance with it. (He was then acquitted in Jordan.)
A similar approach could have been adopted this time, but it was not. The reason can only be that it was never intended that this policy would actually be implemented. It was a policy for other purposes. It was a proposal which also failed even to have a plausible case for “value-for-money”, with the former home secretary Priti Patel having to issue a “ministerial direction” overruling an adverse assessment of the senior official of the Home Office.
The current Supreme Court of the United Kingdom, under its president Lord Reed, does not have a reputation for judicial activism. The court tends to be deferent to the executive and the legislature on policy questions. As it was, the Supreme Court did not rule that the Rwanda policy was inherently unlawful. The justices instead said that it needed to rest on something firmer than an MoU, given what was at stake.
The court was right to say this—but it was not saying anything different here from the House of Lords committee a year ago. Had ministers really wanted this policy to be judge-proof, they would have followed the example of May and Qatada from 10 years ago, for that was an example of a home secretary achieving a similar policy-legal objective without leaving the ECHR.
The court was also right (and savvy enough) not to make the appeal judgment dependent on the ECHR or the Human Rights Act. Even if the United Kingdom were not in the ECHR, it would have made little-to-no difference to the judgment handed down, given the UK’s other international obligations. Those in politics and the media who were pre-programmed to demand departure from the ECHR if the government lost the appeal have ended up looking undermined. (This will not stop them trying to make the connection.)
Taking policy and law seriously means working with the structures and processes in place, not disregarding them and hoping that others will nod along when you blame others for your failure. This was not a policy that had to end in failure by reason of law or human rights; it ended in failure because ministers never really took it seriously as a policy in the first place.