In April 2022, Boris Johnson’s government announced that it had signed a memorandum of understanding (MoU) with the government of Rwanda to establish a migration and economic development partnership. Under the agreement, some people applying for asylum in the UK could be transported to Rwanda to have their asylum application considered in Rwanda.  

The asylum partnership has been controversial and the form of the agreement—a non-binding MoU as opposed to a full treaty—has provoked criticism that the policy has not received sufficient parliamentary scrutiny. In October 2022, the House of Lords International Agreements Committee published a report which was critical of the government for using an MoU for the agreement instead of a treaty. 

On 6 February 2023, the House of Lords is due to consider the following question for short debate moved by the chair of the House of Lords International Agreements Committee, Baroness Hayter of Kentish Town (Labour): 

 To ask His Majesty’s Government why it used a memorandum of understanding rather than a treaty as the vehicle for the agreement with Rwanda on the transfer of asylum seekers 

1. What is the UK-Rwanda asylum agreement? 

On 14 April 2022, the then prime minister, Boris Johnson, announced that the UK had signed a migration and economic development partnership with Rwanda. This introduced a scheme that would see some people with asylum applications deemed inadmissible by the UK flown to Rwanda to have their asylum claims processed there. The UK deems most asylum applications as inadmissible if the applicant has passed through a “safe third country” before making an onward journey to the UK. Those removed to Rwanda and whose claims were successful would not be eligible to return to the UK but could settle in Rwanda as refugees. Those with unsuccessful claims could be removed from Rwanda to a country in which they have a right to reside. 

The UK government has said that the policy would: 

Initially focus on deterring those who have already reached safe third countries from making dangerous journeys to the UK in order to claim protection, especially (but not exclusively) where travel is by small boat in the English Channel. 

The asylum policy has been controversial. National and international concerns have been raised about whether the scheme contravenes international law and human rights. A summary of this commentary can be found in the House of Lords Library’s briefing ‘Current affairs digest: Constitution (June 2022)’ (9 June 2022). 

At present, there have been no removals of asylum seekers to Rwanda, as the scheme has faced legal challenges. In June 2022, a planned flight to Rwanda with asylum seekers on board was prevented from leaving the UK following an injunction from the European Court of Human Rights. In December 2022, the UK High Court upheld the overall lawfulness of the policy. In January 2023, the High Court granted permission for a partial appeal of the ruling. 

2. What is the difference between a treaty and a memorandum of understanding? 

Treaties are international agreements concluded in writing between nation states which create rights and obligations in international law. In the UK, treaty-making is a function of the government under the royal prerogative. There is no systematic scrutiny function for the UK Parliament during the negotiation and agreement of a treaty. Since 1924 there has been a convention (known as the Ponsonby rule) that, once signed, treaties are laid before Parliament for 21 days before they can be ratified. In 2010, this convention was placed on a statutory footing in part 2 of the Constitutional Reform and Governance Act 2010 (CRAG). However, no debate or vote in either House of Parliament is required prior to a treaty being ratified. The House of Commons has the power to delay ratification for 21 days—repeatedly, if desired—but only if the government makes time for debates and votes. The House of Lords can vote against ratification, but the government can still proceed by making a statement setting out why it believes the treaty should be ratified. 

Memorandums of understanding are agreements between states, but their provisions are not legally binding in international law. Guidance on MoUs published by the UK government in March 2022 stated: 

A memorandum of understanding (MoU) records international commitments, but in a form and with wording which expresses an intention that it is not to be binding as a matter of international law […] The formalities which surround treaty-making do not apply to it and it is not usually published. 

3. Parliamentary scrutiny of MoUs 

3.1 Should the CRAG Act 2010 apply to memoranda of understanding? 

In a series of committee reports over recent years there has been an ongoing disagreement between the House of Lords International Agreements Committee and the government about whether the Ponsonby rule, and subsequently the CRAG Act, should apply to non-treaty agreements such as memoranda of understanding. 

The issue was originally raised in the 2020 report of the House of Lords European Union Committee ‘Treaty scrutiny: Working practices’. At the time, it was the ‘parent’ committee of the International Agreements Sub-Committee, which was established as a consequence of Brexit. The committee noted that the definition of a ‘treaty’ in section 25 of CRAG is “a written agreement (a) between states or between states and international organisations, and (b) binding under international law”. It contrasted this with a potentially wider definition of the agreements covered by the Ponsonby rule: 

We note the commitment contained within the third limb of the Ponsonby rule that the government of the day will draw to the attention of Parliament “other agreements, commitments and understandings which may in any way bind the nation to specific actions in certain circumstances and which may involve international obligations of a serious character, although no signed sealed document may exist”. This commitment was not codified in statute as part of the Constitutional Governance and Reform Act 2020. 

The committee called on the government to “enter into a discussion about the extent to which this commitment covers politically important memoranda of understanding, and about how these can be drawn to the attention of Parliament going forward”. 

In its response to the report, Boris Johnson’s government explained the circumstances where it might use MoUs: 

[MoUs] are used where it is appropriate to conclude a statement of political intent or political undertaking, and where there is no requirement for a legally binding framework. They can be useful tools for arrangements to be established quickly or operate flexibly, for detailed provisions which change frequently, for primarily technical or administrative matters, or for situations where confidentiality is required, for example in defence matters or technology. 

It said MoUs are drafted in “non-legally binding language to reflect political commitments” and they are “not binding as a matter of international law and are not published or laid before Parliament as a matter of government practice”. 

The International Agreements Committee (the successor to the sub-committee) returned to the issue in the 2021 follow-up report ‘Working practices: One year on’. It said the government had “consistently refused” to agree to its request that “important MoUs should be notified and, where appropriate, disclosed to the committee on a routine basis”. The committee explained why it considered this issue important: 

[…] the difficulty with the government’s approach is that it allows the government to enter into secret arrangements which it does not disclose to Parliament on the grounds that it asserts that they are not legally binding in international law. In addition, and no less significantly, the use of MoUs allows the government to fill out the details of a treaty it has signed—a practice which it acknowledges in its own Guidance on Practice and Procedures. This appears to be akin to producing an act of Parliament with associated delegated legislation, but never showing Parliament the detailed regulations made under the parent legislation. 

The committee highlighted that it remained “concerned that we are not informed of important agreements which are not subject to ratification, contrary to the third limb of the Ponsonby rule”. It proposed a set of criteria to enable important MoUs to be identified and notified to the committee. 

In its response, the government disputed the committee’s interpretation of the Ponsonby rule: 

The government considers the committee is mistaken in its belief that there exists a “third limb of the Ponsonby Rule” (paragraph 82 of the Report). The government notes that there has never been a convention in the UK whereby non-legally binding arrangements are routinely submitted to parliamentary scrutiny. This is borne out by the consistent practice of successive governments and is further supported by the fact that Parliament did not consider disclosure of non-legally binding arrangements part of the Ponsonby Rule when it was looking to put the convention on a statutory footing in CRAG. 

In follow-up correspondence with the government, the committee argued the government’s position “flies in the face of a clear commitment, made on the floor of the House [of Commons] in 1924, that the government should disclose agreements which fall short of being treaties, but which ‘involve international obligations of a serious character’”. The government said it did not dispute the wording of the statement made in 1924, but it “respectfully disagree[d] that this statement reflects a constitutional convention or practice that has been followed by successive governments over the last 98 years”. 

In a House of Lords debate on the committee’s working practices report in May 2022, Baroness Hayter argued it had never been suggested at the time of the passage of the CRAG Act that it “supplanted” the Ponsonby rule. She concluded that the operative question was how Parliament could scrutinise MoUs: 

Whatever the status of Ponsonby, it is surely not acceptable for the government to sign far-reaching agreements with foreign powers, with human rights, expenditure, diplomatic or even security implications, without so much as a nod to Parliament, let alone any chance for a debate. 

3.2 House of Lords International Agreements Committee 2022 report on the UK-Rwanda agreement 

In October 2022, the House of Lords International Agreements Committee published the report of its inquiry on the MoU to establish the asylum partnership with Rwanda. It was critical of the government’s use of an MoU for the agreement. 

The committee stated that the MoU is an “important political agreement”, with implications that “may affect individual rights and which warrants Parliamentary scrutiny”. It said that the government had concluded an agreement which “appears to be entirely unenforceable”. The report stated that, in practice, this meant that “neither individuals, nor the parties to the arrangement, can ensure the rights of those affected are fully protected”. 

The report continued: 

The UK government should not have chosen an MoU to facilitate this arrangement. Agreements that raise fundamental questions about individual rights should not be entered into through an MoU, but through a formal treaty. 

The committee concluded: 

It is unacceptable that the government should be able to use prerogative powers to agree important arrangements with other states that have serious human rights implications without any scrutiny by Parliament. 

3.3 Government response to the International Agreements Committee report 

The current government published a response to the committee’s report in January 2023. The response agreed that the MoU is a “non-binding instrument setting out an important political agreement” with Rwanda. The government reiterated its rationale for entering into the agreement. It said that: 

 […] decisive action is needed to tackle the criminal gangs who exploit the hopes of migrants, pushing them to make dangerous journeys to the UK with false promises that they can settle in the UK if they make it. 

The government claimed that the framework for removing asylum seekers with inadmissible claims “is already underpinned by domestic legislation which has previously been scrutinised in Parliament”. It cited the Immigration and Asylum Act 1999 and, for newer claims, the Nationality and Borders Act 2022 as the relevant legislation. 

The government stated that in its view “the use of NBIs [non-legally binding instruments] does not create a scrutiny gap”. It said that to construct a new framework for NBIs would be “unworkable and unwieldy” and would “restrict inappropriately the government’s ability to act on the international stage under the royal prerogative”. 

In terms of the opportunities for parliamentary scrutiny of the agreement, the government stated: 

Given the importance of this arrangement, and in the interests of transparency, the government decided to publish the MoU […] alongside the then prime minister’s announcement of the partnership. Home Office ministers have made statements to Parliament regarding this arrangement, including but not limited to an oral statement by the (then) home secretary, Priti Patel, at the earliest available opportunity after the announcement on 19 April 2022 and a subsequent appearance before the Home Affairs Committee by the (then) minister for justice and tackling illegal migration on 11 May 2022. 

The government reiterated its previous position that “there has never been a convention in the UK whereby NBIs are routinely submitted for parliamentary scrutiny”. The government stated that although the agreement was not legally binding, it was satisfied that: 

The terms of the MoU—including the monitoring arrangements—provide the assurances we, and Rwanda, need to confirm that the arrangement will be operated in line with international obligations and in a manner which ensures the welfare and safety of those people relocated under it. 

The MoU includes governance provisions, which include a joint committee comprised of officials from the UK and the government of Rwanda, and an independent monitoring committee. On 23 January 2023, the government confirmed in an answer to a parliamentary question that the monitoring committee had not yet been established, but a meeting “is being planned and details on this will be set out in due course”. 

4. Read more 

Cover image by UK Home Office on Flickr.