The Tories have lost the plot

By any measure it was a startling headline in The Times: “Rwanda is forcing us to obey the law, says Sunak”. The Prime Minister confirmed that the African nation, which the UK Supreme Court does not deem to be a “safe country”, has insisted that this country must conform to international law as a pre-requisite for any deal on Rwanda hosting our illegal migrants. 

So much for Britain being “one of the leading lights in the world in the international legal order”, in the words of Professor Robert Spano, former President of the European Court of Human Rights (ECHR). At a news conference the Prime Minister whined repeatedly that Rwanda was preventing him from moving another “inch” to appease right-wing MPs in his party. 

His excuse was not enough. The immigration minister Robert Jenrick resigned rather than pilot the proposed Safety of Rwanda (Asylum and Immigration) Bill through parliament. Jenrick joined his former boss Suella Braverman complaining that the Bill “does not go far enough to prevent” legal action based on human rights and international law. Meanwhile the self-styled “Star Chamber” of the Tory European Research Group (ERG) has already decided that the bill is not “sufficiently watertight” to allow “the disapplication of all those arrangements”. 

Thousands of migrants crossing the Channel in dangerous “small boats” are a matter of great public concern, even if they account for only a small fraction of net migration, both legal and illegal, into this country. There are plenty of actions which can and are being taken to “stop the boats” without violating human rights and international law. What is deeply troubling – and a potential threat to every person on these islands – is the overt willingness of some in the governing party to break the rules and trash our democracy’s time-honoured checks and balances. Without a framework of law, independent of a Commons majority, what happens to “illegal migrants” could happen to the rest of us.

The government’s proposed bill goes a long way down that extra judicial road but not far enough for those Tory MPs now attacking it.

The Bill aims to allow migrants to be sent to Rwanda, “notwithstanding” the UK’s existing legal undertakings, but only in their specific case. It says the courts “must not consider” whether Rwanda is safe. 

The Tory rebels now rallying to Jenrick and Braverman want to flout the Human Rights Act and the Refugee convention and to withdraw from the European Convention on Human rights. They would also render the UK Supreme Court impotent permanently, by making its rulings subject to being overruled by the whim of parliament.

The legislation being put forward by Sunak and his ministers accepts the framework of international and domestic law in practice while attempting to suspend it in practice for removals to Rwanda. The bill aims to rebut the UK Supreme Court’s verdict last month. The court did not rule against the principle of removing illegal entrants to a third country. It did say that Rwanda was not a “safe” destination for them.

Sir Jonathan Jones KC, formerly the government’s chief independent legal advisor, says the bill “is a rather extraordinary piece of legislation” that tries to “reverse by law a finding of fact by the Court” that Rwanda was not safe. Such a declaration by the UK parliament does nothing to alter the objective facts on the ground. Adam Tucker, constitutional law expert at the University of Liverpool, warns this would “legislate a dangerous fiction into domestic law…This straightforwardly undermines the rule of law. And deliberately so – it is designed to permit the government to evade its legal responsibilities.”

At home the government wants to rule without checks, internationally it is trying to have it both ways. The treaty signed by the Home Secretary in Kigali last week is an attempt to get round the “refoulement” issue identified by the Supreme Court. The only country to which Rwanda can now send back migrants from the UK is the UK – not to their country of origin or a neighbouring state, as has happened to departees from other countries. However according to James Elliott, Professor of Public Law at Cambridge University, enshrining this in the proposed UK act “reveals an astounding level of hypocrisy in the sense that it… presupposes that Rwanda will honour its obligations in international law while demonstrating that the UK is prepared to breach its own obligations.”

“Moderate and pragmatic” Conservative MPs share many of these misgivings. Damian Green, chair of the One Nation Caucus, counsels “any government bringing forward difficult and controversial legislation needs to be sure that it is not breaching the important conventions that underpin parliamentary sovereignty. Those conventions insist that legal restraints must play a part in stopping the state becoming overt-mighty.”

Sir Bill Cash, the leading light of the ERG’s Star chamber, has no such reservations. “Brexit restored the sovereignty of the UK parliament” he asserts, now is the time to bin “obligations that were suited to the immediate post-war world but are manifestly not suited to the international people smuggling rackets.” Outside the ECHR the UK would be alongside Putin’s Russia and Lukashenko’s Belarus.

With dissatisfaction to his left and right on the Conservative benches, Sunak may yet have to shelve his bill. There is no hint that he will abandon the Rwanda plan, however cruel, selective and ineffective it may be. Some Conservatives see calling an election of the issue as his best route to political salvation. 

Sunak is willing to reject the human rights of migrants, the rule of law under the Supreme Court and international diplomacy to reform treaties. Suella Braverman, who is currently stalking him as party leader, wants to go further: “lefty lawyers” and the operational independence of the police are in her gun sights. This last “most unconservative proposal” prompted Damian Green to protest that “Dictators like Xi and Putin would prefer to have the state untrammelled by any law”.

“Fascism” is not a word to use lightly, but some Conservatives are proving so willing to jump the traditional guard rails of our democracy, perhaps unthinkingly, that it is worth flagging up one direction in which the UK could be heading. Britannica defines fascism like so: “A way of organizing a society in which a government ruled by a dictator controls the lives of the people and in which the people are not allowed to disagree with the government.”

Of course it is unlikely to happen. The Tories seem on course to lose the next election. Most Conservatives would probably not go along with the likes of Braverman anyway. Less than a hundred thousand Conservative Party activists have already given the whole country Boris Johnson and Liz Truss as Prime Ministers. If Sunak falls, the next leader could capture the party in the way that Donald Trump has taken over the Republican party. They might put “democratic” control of the courts and lefty lawyers, i.e. by ministers, into the next, populist, Conservative manifesto. It is possible to win a tight election with less than 40 per cent of the votes cast. It could just happen. It may already be happening. Ask the Rwandans, they seem to have their doubts about us. 

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