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Supreme Court Rwanda ruling

Mike McCartney

20th November 2023

Another example of the independence of the judicial branch

The UK's highest court has ruled against the Conservative government's plans to deport asylum seekers to Rwanda on the basis that the country is not safe.

See video and questions below for a background/recap.

Questions on the video:

1. What was the government's plan regarding the deportation of migrants?

2. When was the plan first devised and by whom?

3. Why did the government claim the plan was designed?

4. What would happen to anyone arriving illegally in Britain under the scheme?

5. Where would these individuals be deported to?

6. What options were available for those who successfully applied for Refugee status?

7. What was one of the main concerns of the Supreme Court regarding the plan?

8. How much did the original deal with Rwanda cost the government?

9. Who has championed this policy?

10. Who was the former Home Secretary associated with this plan?

Suggetsed answers:

1. The government's plan was to deport migrants to Rwanda.

2. The plan was first devised by Boris Johnson's government in April 2022.

3. The government claimed the plan was designed to deter Asylum Seekers from making the dangerous journey across the channel in small boats.

4. Anyone arriving illegally in Britain would face deportation to Rwanda.

5. They would be deported to Rwanda, which is 4,000 miles away.

6. Those who successfully applied for Refugee status would be given the right to remain in Rwanda, not return to the UK. Alternatively, they could apply to settle there on other grounds or seek asylum in another safe Third Country.

7. One of the main concerns of the Supreme Court was that asylum seekers who have been sent to Rwanda would be at a real risk of being sent back to their country of origin.

8. The original deal with Rwanda cost the government £120 million.

9. The policy has been championed by now prime minister Rishi Sunak.

10. The former Home Secretary associated with this plan was Suella Braverman, who was recently sacked.

The most recent ruling has put judges back on the front page, and yet again raises important questions about their role. Many see a judiciary free from pressure by the executive and legislative branches as essential to a properly functioning democracy. To restate, judicial independence is a question of whether this branch of government can remain free from the influence of the other two branches. It sometimes gets lumped together with the related, but separate question, of judicial bias. I think the latter is internal and the former is external.

Here is a summary of the arguments on how independent are judges from Parliament and the executive.

The judiciary is free from pressure from Parliament and the executive for the following reasons

· It is argued that pay and conditions of employment keep the judiciary free from corruption and political pressure.

· The sub judice rules in both houses of Parliament keeps the judiciary free from interference by the executive and legislative branches since MPs and Lords are prevented from discussing a current or impending court case.

· The conduct of judges should be free from criticism by Parliament, except on the rare occasion when there is a substantive motion for an address for removal from office.

· Growth in judicial review indicates an increased willingness of the judicial branch to exercise its powers in declaring actions of ministers ultra vires (i.e. beyond their statutory power):

· Since the Human Rights Act (1998) came into force judges have been unafraid to declare government policy incompatible with the European Convention on Human Rights (particularly in relation to terrorism):

· The former Lord Chancellor, Jack Straw, went public in defence of judges who make ‘difficult’ decisions, thereby underlining the government’s attempt to protect the independence of the judiciary.

The judiciary is not free from pressure from Parliament and the executive for the following reasons

· Some of the offices overlap and holders thus perform functions which in some states would be carried out separately by the executive and legislative branches.

· Somewhat less obvious, but not lacking in controversy, is the fusion of roles carried out by other members of the government, such as the Attorney General who serves as legal adviser to the government.

· The appointments procedure has traditionally been characterised by secret soundings by the PM and Lord Chancellor, and the higher judiciary has been drawn exclusively from the Bar (particularly the Inns of Court in London).

· The judiciary have led a series of investigations on controversial political issues, eg Scott Inquiry (Arms to Iraq)

· The judiciary is much more likely to rule in favour of the government than against. create the illusion that the judiciary acts independently from the other branches, thereby suggesting that some political pressure may exist.

· Keith Ewing, writing in The Guardian, lists a number of failings of our judiciary when it comes to rights protection, arguing that “the erosion of liberty has increased, not diminished under the ‘culture of liberty’ created by the HRA.

Activity

With the above arguments and the most recent ruling by the Supreme Court in mind, do you agree that the UK judiciary is fully independent?

Mike McCartney

Mike is an experienced A-Level Politics teacher, author and examiner.

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