Blog post by Professor Elspeth Guild, Queen Mary University of London
One of the loudest of the claims made in favour of voting for Brexit in the 2016 referendum, which opened the way for the UK’s departure from the EU, was to take back control in particular regarding borders and migration. This claim has had an enduring impact on British politics ever since and has been recognised generally as a state sovereignty claim. But what kind of sovereignty does the UK seek to achieve? In this blog I examine how we can understand the claim to recovering British sovereignty from Brexit to the Supreme Court’s judgment on Rwanda as a safe country for asylum seekers. Following Kargaran’s blog on the judgment focusing on good faith and the Rwanda policy published on this site on 22 November, here i will examine the same decision from the perspective of the changing nature of sovereignty in the UK. State sovereignty is a term much used in international law to describe states which are independent and thus recognised in law. Within a state, sovereignty breaks down into multiple forms, most famously in the UK, parliamentary sovereignty, where parliament is the supreme legal authority to which even the executive is accountable, but also including the concept of popular sovereignty where the people are the source of legitimacy of the parliament, and executive power increasingly exercised as an entitlement to legislate without parliament, for which I will use the term executive claim to sovereignty (or pseudo-sovereignty).
Brexit was a fairly long and painful process for the British political class resulting in substantial political instability, successive elections and general turmoil. It’s legal status was set out in the Withdrawal Agreement 2019 which was incorporated in the UK law by a series of Acts of Parliament. The Withdrawal Agreement is notable in that it is a treaty between the UK and the EU and it clearly sets out rights for individuals on which they are entitled to rely against the EU or UK authorities. This agreement was followed by the Trade and Cooperation Agreement (EU-UK) 2021 which states at Article 5 that it creates no rights for individuals (with one exception for social security). But it is in the form of a treaty between the UK and EU, binding on them in international law. Thus, the move out of the EU took place through an international treaty which upheld the historic rights of individuals followed by a treaty on the future relationship which excluded rights for individuals. In the language of sovereignty, this appears to be a move away from popular sovereignty as described by Benjamin Franklin that the rulers are the servants and the people their superiors and sovereigns, at least in so far as rights are concerned. However, both treaties were in the form of legal engagements between the parties to uphold the provisions of the treaty. Once the UK was ‘out’ of the EU, and sought to deal with another group of individuals, persons arriving in the UK by sea and seeking asylum, in respect of whom the executive did not want any rights to accrue, it moved away from the treaty form altogether preferring a less constraining instrument, a Memorandum of Understanding. On 13 April 2022 such a memorandum was entered into by the UK and Rwanda accompanied by two diplomatic Notes Verbales, together known as the MEDP. The MEDP states clearly that it is not binding in international law and does not create or confer any right on any individual (paras 1.6 and 2.2). Further it requires no parliamentary scrutiny or approval. In the language of sovereignty, this could be termed executive sovereignty, the exercise of executive power independent of parliament, in a form designed to pass under the radar of legality notwithstanding the profound consequences of the arrangement for individuals seeking international protection.
The most spectacular appearance of executive sovereignty in the Brexit context, took place in 2016-2017 when the then Prime Minister sought to trigger Article 50 TEU, the provision of the EU treaties which sets out the conditions for a Member State to leave, without an Act of Parliament. This attempted short cut to leaving the EU was challenged before the courts ending with a Supreme Court judgment on 27 January 2017. In this judgment the majority held that the executive was not entitled to take action to commence the Brexit process unilaterally but need the approval of Parliament. The attempt at executive sovereignty was unsuccessful. The principle of Parliamentary sovereignty was upheld by the Supreme Court. The then Prime Minister put before Parliament the European Union (Notification of Withdrawal) Act 2017 consisting of one provision which was passed, receiving royal assent on 16 March 2017.
The UK Rwanda MEDP comes a close second regarding the purported exercise of executive sovereignty on which the Supreme Court handed down judgment on 15 November 2023. Having chosen to eschew the treaty format for putting in place an arrangement to send asylum seekers to Rwanda for the consideration, determination and further treatment of their international protection claims, the UK executive set up a conflict between its obligation of non-refoulement (the Supreme Court cites multiple sources in international law of this obligation as well as multiple sources of implementation of the obligations in national law) and sending asylum seekers to Rwanda. The non-refoulement obligation is an international treaty obligation of the UK, given effect in national law through numerous Acts of Parliament, while the MEDP has no legal status as such. Instead, as the UK Government argued before the court, it relied on assurances given by the Rwandan government that it would treat the asylum seekers in accordance with Rwanda’s legal obligation of non-refoulement. The case would ultimately be determined on the basis of the inadequacy of these assurances in light of practice on the ground in Rwanda. Following the judgment the UK Government has entered into negotiations with Rwanda to sign a treaty setting out what had been the content of the MEDP.
The question of exercise of executive power (or sovereignty) as revealed in the judgment does not end here. The quality of the assurances that Rwanda is a safe country and the way in which these had been incorporated into immigration law also came in for judicial scrutiny. The Home Office produces guidance to case workers called Country Policy Information Notes (CPINs). These are not legal binding nor produced in a legal form but are followed by case workers. The Rwanda CPIN produced after the agreement of the MEDP states that some categories of asylum seekers can safely be sent to Rwanda for the processing of their claims (para 6, UKSC judgment). However, the Foreign Office (FCDO) had already advised the Home Office before it issued the CPIN that Rwanda should not be prioritised as a destination country on the basis of the FCDO’s long experience and knowledge of the country (para 52-53 UKSC judgment). Nonetheless, the Home Office officials which prepared the CPIN relied heavily on assurances received from the Rwandan authorities rather than the knowledge and experience of the FCDO. Further, the Independent Chief Inspector of Borders and Immigration, a post established in 2007 is advised by an Independent Advisory Group on Country Information to fulfil his statutory duties. The 2022 Country Information report on Rwanda supported the FCDO concerns stating that there were fundamental gaps of information and unanswered questions with regards to procedural practicalities and implications (para 54 UKSC judgment). It appears that the Home Office alone exercised executive power even in an area which was within the competence of another ministry and disregarded the negative report of the independent monitoring body established to improve the efficiency, effectiveness and consistency of the Home Office’s border and immigration functions through unfettered, impartial and evidence-based inspection. The mechanisms for balance and external independent monitoring were completely ineffective in reigning in the ambitions of the Home Office regarding the Rwanda policy. Only the Supreme Court has been able to temper the hubris of the Home Office.
The final argument dealt with by the Supreme Court relates to the possibility of continuing effects of EU law regarding asylum which would have prevented a policy like the Rwanda one. EU law requires that an asylum seeker can only be sent to another country for determination of an asylum claim where that country is safe for the individual and the person has some link with the country, an essential missing element in the UK’s Rwanda policy. In the detailed consideration of this argument, the Supreme Court describes, in effect, the journey of sovereignty claims as the UK cut itself loose from the EU. Each step along the legislative route reveals an intoxication of the legislator and the Home Office with sovereignty and the new possibilities open to them as they claim their entitlement to exercise state powers. But as the path continues, the Home Office increasingly marginalises the legislator, preferring to grasp executive sovereignty to itself to determine life or possibly torture and death for asylum seekers. The sovereignty trail blazed by Brexit continues to disrupt UK constitutional rules in favour of executive pseudo-sovereignty.
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