Could the House of Lords kill the Rwanda bill?

Rishi Sunak’s controversial ‘stop the boats’ plan faces another hurdle to make it into law – an upper chamber eager to sink its teeth into the legislation, writes Sean O’Grady

Protestors outside the Home Office in Central London last month (AFP/Getty)

The latest Rwanda bill, one of the most bizarre/innovative pieces of governmental legislation ever to try to make its way to the statute book, faces yet more trouble in the House of Lords after a difficult passage through the Commons. The bill cannot become law without the consent of the upper house, and it is by no means clear this will be offered; nor that Rishi Sunak can impose his will, and that of the democratically elected Commons, to make his Rwanda plan effective. Without that, by his own witness, there will be insufficient deterrent for refugees and others to cross the English Channel, and he will not “stop the boats”, as so often promised…

What’s the problem now?

Their lordships are getting their teeth into the bill, and here’s a report by an influential House committee that calls for the British government and the Rwandan government to do much more to show the bill is lawful, and that the objections to its legality as set out in the Supreme Court’s judgment last year, have been clearly answered: “The government should submit further information to parliament in due course to confirm that the necessary legal and practical steps and training identified in this report, which underpin the protections provided for in the treaty, have been put in place and bedded in. It should then allow for a further debate before proceeding to ratification.” 

Among other things the committee wants to see is a new asylum law in Rwanda; a system for ensuring that the principle of non-refoulement (the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution) is upheld; a process for submitting individual complaints to the monitoring committee; the appointment of co-presidents of the appeals body; training for Rwandan officials dealing with asylum applicants; and steps to ensure a sufficient number of trained legal advisers and interpreters are available. 

None of these reforms would be achieved rapidly, if ever, and if the House as a whole endorses the view of the committee, and insists on them before approval, then the bill is doomed. Their lordships will discuss these recommendations shortly, and it seems they enjoy wide support. 

Separately, Liberal Democrat peers are also submitting a “fatal motion” summarily to end its passage through parliament, asserting that the plan to deport asylum seekers breaches international law and will waste millions of pounds of taxpayers’ money that could be better spent on public services.

Doesn’t the will of the people expressed through the Commons take precedence?

Usually, yes, but common sense dictates that not everything agreed by the Commons would make workable laws or indeed carry a clear and unequivocal democratic mandate. This gives the Lords its leverage over legislation and the constitution a check on the misuse of executive power. 

The parliament acts and the constitutional rule known as the Salisbury Convention means that the Lords has no powers over “money bills”, such as budgets, and can only delay other bills by a year before they can be reintroduced in the next session of parliament and passed with royal assent but without their lordships’ approval. The Salisbury Convention states that the House shouldn’t mess around with measures that are contained in a governing party’s election manifesto because that represents some form of explicit democratic mandate. Nothing remotely like the Rwanda plan was mentioned in the 2019 Conservative election manifesto. So it is vulnerable. 

So can the Lords scrap the Rwanda plan?

Formally, no, because it can only delay it, but in practice at the moment there is every chance of that because the general election and a change of government are so close. If the House is so hostile that it rejects the plan, then Sunak could invoke the Parliament Acts and override the Lords’ veto. However, that would still mean a delay of a year until the bill could reintroduced to the Commons and passed in the next session of parliament. The period of one year takes effect from the date of the initial second reading – 13 December 2022. We are now so close to a general election that must be held by 28 January 2025 that the parliament acts are practically useless to Sunak – unless he wins the election, of course. 

Had he moved sooner and got the legislation right first time last year or the year before and pre-empted the Supreme Court’s eventual objections, then the Rwanda plan would be law by now. But neither Sunak nor his ministers were competent enough to make the plan legally unassailable in the first place, and relied on a bogus version of the doctrine of parliamentary sovereignty. 

How many votes does Sunak have in the Lords?

A total of 269 peers take the Conservative whip, out of a total of 785 sitting members. This makes them the largest single group in the Lords, and bigger than the combined strength of Labour (175) and the Liberal Democrats (80), but some way short of an absolute majority, thanks to the presence of 184 cross-benchers, a “non-affiliated” club of 37, the Anglican bishops (26) and other parties. 

The Conservatives form the largest bloc in the Lords but without an overall majority (PA)

More to the point, many of Sunak’s nominally Conservative supporters are independent-minded and their support cannot be taken for granted. That is especially true of those with a legal background, who may well find the eccentrically composed bill legally as well as morally offensive. 

What happens if the Lords rejects or radically amends the bill?

If the House reject the bill entirely, an unusual move, then it’s dead until it can be reinforced in the Commons. If it’s amended so radially that it ceases to be what Sunak wants, then it will be subject to a game of parliamentary ping-pong until such time as one or other chamber gives in. More minor amendments could probably be accepted by the government, as is normal practice – but there’s still a chance that Tory rebels on either side of the debate could disable it at the last gasp. 

Can Sunak crush the Commons rebels?

That’s his aim. The chief whip, Simon Hart, has asked all of the 11 MPs who voted the bill down at third reading to see him, one by one. When they do so, Hart will deploy the usual mix of reasoned argument, veiled threats and incentives to persuade them to get onside. However, with such little chance of winning the election, so many backbenchers facing defeat and thus so little to offer them in the way of promotions or power, Hart faces quite the challenge. Making so many rebels whipless would merely create a new mini hard-right Tory party, less likely to support the Sunak administration more widely. 

Some of the rebels, notably Suella Braverman and Robert Jenrick, are clearly positioning themselves for advantage when the Conservatives go into opposition. For them, the cachet of “Rwanda rebel” is a precious asset with the grassroots in a future leadership contest. 

Will it get through the Commons if the Lords eventually approves it? 

Not necessarily. If their lordships weaken it too much, then the rebels may attract more support in the Commons and they could technically defeat it at the last minute. 

What’s Sunak’s nuclear option?

Disputes between the Lords and Commons are not unusual but when they are on crucial matters of policy and the position isn’t amenable to compromise, it tends to escalate into a bit of a constitutional crisis. Traditionally this was usually with Liberal or Labour governments attempting to pass progressive or socialistic legislation, such as nationalisation or banning fox hunting but from the 1980s on, Conservative governments also faced resistance on constitutional matters (eg, the abolition of the old Greater London Council) or social matters (eg, child benefits). 

Again, these are usually resolved by invoking the Parliament Acts, or threatening to, but if the Lords digs in then a government can threaten to create hundreds of new peers in order to dilute the resistance and pass the legislation immediately. That’s what happened back in 1910 when the Liberal government persuaded Edward VII and then George V to agree to do so, provided a general election was won on the issue of peers vs people. In the event, the Lords caved after a second election, and a fresh consignment of 400 Liberal peers didn’t need to be created. Sunak could threaten the same but it would mean embroiling the King in politics and probably wouldn’t anyway save the Rwanda bill because everyone knows the next election is lost for the Conservatives. 

Could he threaten to abolish the Lords?

Yes, but it’s a bit empty when he’s unlikely to win the next election to be in a position to do so. Funnily enough, Labour is actually committed to abolishing the Lords, so they don’t have much to lose either way. Perhaps their lordships think Starmer might show them some gratitude for them doing their job properly. He’d certainly be unwise to waste much political capital on such a struggle.