Thanks very much for this David. I'll still stuck on the question on what the courts can *practically* do if Parliament passes primary legislation that they consider unlawful. I know they can make a declaration of incompatibility, but that doesn't stop Parliament acting as it is still soverign.
Reading between the lines, I get the impression that the court is very carefully trying to tell the Government that it has two choices:
1. Tell us explicitly that the government expects to overrule British legal traditions in order to achieve a policy goal, and thus accept any unpopularity that comes with that - e.g. "traditional" Tory voters choosing not to vote because they don't want to vote for a party that's not interested in upholding the "Rule of Law" as they perceive it.
2. Drop the part of the Rwanda policy that's meant to scare off migrants by putting them in fear of being sent to a country they perceive as unsafe - change Rwanda to (say) Ireland, and this part of the policy no longer works, because Ireland's as safe a destination from the migrant's perspective as the UK.
They're having to be careful, because they don't want to make that policy choice for the government; but they also don't want it to continue trying to claim that it can have both a policy that penalises migrants and compliance with past British law - either it's a radical change to the law (which is a policy matter), or it doesn't penalise migrants until their illegitimate status is demonstrated.
It's entirely an option - we do a deal with Ireland (or Australia) that makes them happy to take on our migrants, in return for the benefits we give them - money, access to UK markets etc.
We might not be able to find a deal that we're willing to sign and that meets the Irish demands for such a deal, but that's a matter of politics - in practice, any such deal is going to be heavily weighted in Ireland's favour, because they have nothing to lose by refusing a deal.
We used to be part of a deal for shipping asylum seekers elsewhere, after all - we voted to leave it in 2016, and have now left the Dublin Regulations behind.
Thanks for a fascinating post, maybe the judgement helps us better understand the true intentions of the policy?
The court seems to be saying that should Rwanda develop an adequate asylum processing capacity ie to “produce accurate and fair decisions”, then the policy would indeed be legal. So, this isn't the court simply blocking a policy but setting out the standards required to make it compliant.
The fact that in reality, this is not likely to happen, that the UK government doesn't have the time, patience or resources to support the Rwandan government in making this happen, is perhaps because the underlying motivation for the creation of the policy is not just to outsource the asylum process in 'geographical terms', but also likely to reduce both the overall cost and quality of the process? The court seems rightly concerned that the 'quality' of asylum system outcomes are not compromised.
Thank you for, as always, a brilliantly lucid and succinct post on the incredibly emotive also complex legal and evidentiary issues.
Thanks very much for this David. I'll still stuck on the question on what the courts can *practically* do if Parliament passes primary legislation that they consider unlawful. I know they can make a declaration of incompatibility, but that doesn't stop Parliament acting as it is still soverign.
Am coming to that. Just wanted to get this post out of my system first.
Ha! Fair enough... .
Reading between the lines, I get the impression that the court is very carefully trying to tell the Government that it has two choices:
1. Tell us explicitly that the government expects to overrule British legal traditions in order to achieve a policy goal, and thus accept any unpopularity that comes with that - e.g. "traditional" Tory voters choosing not to vote because they don't want to vote for a party that's not interested in upholding the "Rule of Law" as they perceive it.
2. Drop the part of the Rwanda policy that's meant to scare off migrants by putting them in fear of being sent to a country they perceive as unsafe - change Rwanda to (say) Ireland, and this part of the policy no longer works, because Ireland's as safe a destination from the migrant's perspective as the UK.
They're having to be careful, because they don't want to make that policy choice for the government; but they also don't want it to continue trying to claim that it can have both a policy that penalises migrants and compliance with past British law - either it's a radical change to the law (which is a policy matter), or it doesn't penalise migrants until their illegitimate status is demonstrated.
Simon, its 2023 and Irland is no option anymore and -come to think of it -Australia
It's entirely an option - we do a deal with Ireland (or Australia) that makes them happy to take on our migrants, in return for the benefits we give them - money, access to UK markets etc.
We might not be able to find a deal that we're willing to sign and that meets the Irish demands for such a deal, but that's a matter of politics - in practice, any such deal is going to be heavily weighted in Ireland's favour, because they have nothing to lose by refusing a deal.
We used to be part of a deal for shipping asylum seekers elsewhere, after all - we voted to leave it in 2016, and have now left the Dublin Regulations behind.
Thanks for a fascinating post, maybe the judgement helps us better understand the true intentions of the policy?
The court seems to be saying that should Rwanda develop an adequate asylum processing capacity ie to “produce accurate and fair decisions”, then the policy would indeed be legal. So, this isn't the court simply blocking a policy but setting out the standards required to make it compliant.
The fact that in reality, this is not likely to happen, that the UK government doesn't have the time, patience or resources to support the Rwandan government in making this happen, is perhaps because the underlying motivation for the creation of the policy is not just to outsource the asylum process in 'geographical terms', but also likely to reduce both the overall cost and quality of the process? The court seems rightly concerned that the 'quality' of asylum system outcomes are not compromised.