Following the ruling by the UK’s Supreme Court which found that the government’s Rwanda removal plan for migrants was unlawful, Prime Minister Rishi Sunak announced his intention to rush through emergency legislation to protect the policy from any further legal challenges. This protection comes under the overarching concept of parliamentary sovereignty. But what is parliamentary sovereignty? And how can it be used to trump any ruling from the country’s highest court?
What is parliamentary sovereignty?
Parliamentary sovereignty means that Parliament is the ultimate legal authority in the UK. It is at the very foundation of the UK’s legal framework and affords Parliament the power to create or revoke any law, moves which the courts have no power to declare invalid. It also includes a safeguard, ensuring that no Parliament possesses the power to enact laws that subsequent Parliaments cannot reverse. The origins of parliamentary sovereignty are debated, with some arguing that they date back to the Magna Carta in 1215 and the limits placed on the absolute monarchical power of the time. The Civil War (1642-1651) also saw fundamental restrictions to the arbitrary power of the King. This was then followed by the Bill of Rights in 1689 which emphasised the authority of Parliament over monarchs. The concept evolved over hundreds of years and has been subject to the changing social, moral and legal landscape of the UK.
However, the decision to join the European Union in 1972 meant that there was friction between the absolute power of Parliament and the precedence of EU law. During the Brexit campaigns of 2016, much of the debate centred around the supreme authority of Parliament and the role of Brussels in UK lawmaking. Even though the UK has now left the EU, some have argued that, in the modern era of international legal frameworks, the idea of absolute sovereignty is outdated and unrealistic, an idea that has been prevalent in recent discourse surrounding the UK government’s Rwanda plan.
How does parliamentary sovereignty apply to the Rwanda plan?
The UK government announced a Migration and Economic Development Partnership with Rwanda in April 2022, whereby asylum seekers who had entered the UK ‘illegally’ from January 1, 2022, would be relocated to Rwanda to claim asylum in the African nation. The asylum seekers could then be granted refugee status and stay in Rwanda, apply to settle on other grounds or claim asylum in another country. According to the UK government, this would have helped “break the people smugglers’ business model and prevent loss of life, while ensuring protection for the genuinely vulnerable.” The first flight to Rwanda was due to take off in June 2022 but was stopped after the European Court of Human Rights stepped in to cease the deportations. At the time, the government was critical of the move by the ECHR and vowed to “stop the boats,” a reference to the irregular migrants arriving by sea.
The Rwanda plan then underwent a series of legal challenges, beginning in the High Court, where two senior judges ruled that the government’s plans did not breach the law. This was followed by an appeal to the Court of Appeal, where the justices ruled that the plan was unlawful due to the deficiencies in Rwanda’s asylum processes. The government then appealed to the Supreme Court, which ruled in November that the Court of Appeal was correct in its decision, that Rwanda was not a safe country and that the policy was unlawful. The court held that the policy violated section 6 of the Human Rights Act 1998 and contravened the UK’s human rights obligations.
Soon after the judgment, Prime Minister Sunak announced that he would be ‘taking the extraordinary step of introducing emergency legislation to confirm Rwanda is safe’ and that he was ‘prepared to change our laws and revisit those international relationships to remove the obstacles in our way.’ Applying the principle of parliamentary sovereignty, the government would be using legislation to enshrine the agreement with Rwanda in law, declaring it a safe country contrary to the findings of fact made by the Supreme Court.
Legal and constitutional experts immediately questioned the veracity of Sunak’s claims and raised concerns over the constitutional propriety of such a move. The Bar Council of England and Wales reacted with “grave concern” over “the Prime Minister’s suggestion that legislation might be introduced[,] the purpose of which is apparently to deem Rwanda to be a safe country to which to return asylum seekers.”
Parliamentary sovereignty would allow the government to enact legislation in response to the Supreme Court decision. However, as the Bar Council said in their statement, the decision to pass laws that would “reverse a finding of fact made by a court of competent jurisdiction … would raise profound and important questions about the respective role of the courts and parliament in countries that subscribe to the Rule of Law.” The European Convention on Human Rights and the UN Refugee Convention place various obligations on the UK that would seemingly overrule parliamentary sovereignty. However, with some factions of the Conservative party calling for a withdrawal from these conventions, it raises concerns over the enforceability of both parliamentary sovereignty on one hand and international law on the other.
Whether Sunak will be able to rush through emergency legislation remains to be seen. The Prime Minister has to call a general election before December 17 next year and peers, opposition politicians and members of his own party have vowed to block any emergency legislation. This means that any new law proposed by this government may not make it through both houses before the election.
