On 15 November 2023, the UK Supreme Court unanimously ruled that the government’s Rwanda scheme – under which asylum seekers would be sent to Rwanda to have their claims settled there – is unlawful. The court argued that there was a risk that asylum claims would not be determined properly, meaning asylum seekers would be at risk of being returned directly or indirectly to their country of origin and suffering ill-treatment there. This decision is explained in greater detail by Sir Jonathan Jones.
In response, prime minister Rishi Sunak set out two steps that his government would take in order to proceed with its plans: agree a treaty with Rwanda to replace the current Memorandum of Understanding; and introduce emergency legislation to declare that Rwanda is safe, a move which would prevent further court challenges under UK domestic law. The government’s treaty with Rwanda was signed on 5 December. The following day, the government published its planned emergency legislation - the Safety of Rwanda (Asylum and Immigration) Bill. Both the treaty and the legislation will require the involvement of the UK Parliament. This explainer sets out what that will entail.
How will parliament be involved in a treaty with Rwanda?
Ministers have agreed a treaty with Rwanda, which will replace the Memorandum of Understanding (MoU) that currently exists between the two countries. The MoU is not legally binding and so cannot be relied upon in court. The government believes that a legally binding treaty, setting out safeguards around Rwanda’s asylum processing , will address the UK Supreme Court’s concerns.
Treaties are agreements between countries (or international organisations) that are binding under international law. In the UK, the ability to make treaties is a prerogative power – a power held and exercised by the government. It is the government – and not parliament – that seeks, negotiates, and agrees treaties, and the government that ultimately ratifies (in other words, gives effect to) treaties.
Parliament’s role is to scrutinise treaties and to either confirm its willingness for the government to ratify a treaty – or to raise an objection. For procedural reasons set out below, it is difficult for parliament to prevent a government from ratifying a treaty.
How does the treaty scrutiny process work in parliament?
The process by which parliament scrutinises a treaty is set out in the Constitutional Reform and Governance Act 2010 (often referred to as CRAG). CRAG requires the government to lay a treaty before both the Commons and the Lords for 21 sitting days, alongside an explanatory memorandum giving further information about the treaty. Copies of the treaty are usually also passed to relevant select committees in both the Commons and Lords. This allows members in both Houses to consider a treaty – and select committees to examine it should they choose to do so. At the end of the 21-sitting-day period, as long as neither House has expressed an objection, the government can ratify the treaty.
Either House can express an objection by passing a resolution, but procedurally this is not straightforward. This is because there is no requirement for the government – which controls the agenda in the Commons – to schedule time for a debate and vote on such a resolution. If the government chooses not to schedule this time, there are limited options available to MPs to secure that time. One option in the Commons would be an Opposition Day, although the government could choose not to schedule any within the 21-sitting-day period.
If the Commons does pass a resolution objecting to ratification, then the government cannot immediately ratify the treaty. Instead it can simply begin the 21-sitting-day process again by having a minister make a statement explaining why they think the treaty should be ratified. In theory, there is no limit to the number of times that this process could happen. In reality, it would become a war of attrition between the government and parliament. If the Lords passes a resolution objecting to ratification, the government can proceed with ratification anyway (though a minister must make a statement explaining why the government is doing so).
Since Brexit raised questions about the adequacy of parliament’s procedures for scrutinising treaties, some reforms have been introduced. The Lords set up the International Agreements Committee, a select committee tasked with considering any treaties laid before parliament under the terms of CRAG, and the government agreed to publish more information in the explanatory memoranda that accompany treaties. However, these reforms have not altered the fundamental process of treaty scrutiny by parliament.
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