Point of no Return: Britain turns its back on global law

NEW DELHI: Last month, UK Prime Minister Rishi Sunak made an astonishing admission: the United Kingdom would have all but abandoned the European Convention on Human Rights (ECHR) were it not for the intervention of the Rwandan government. I cannot imagine any previous Conservative leader – from Winston Churchill, an early advocate of the ECHR, to John Major – ever suggesting that Rwanda, a country with one of the world’s worst human-rights records, should serve as Britain’s moral compass.

Most UK media coverage has focused on far-right politicians’ claims that the legislation to send illegal immigrants and asylum seekers to Rwanda does not go far enough. But the bigger danger, which few Conservatives have acknowledged, is that it would seriously undermine Britain’s long-term commitment to the rule of law. It is no exaggeration to say that, as the Rwanda bill enters the crucial committee stage in the House of Commons this week, the United Kingdom, long viewed as the home of liberty and famed for exporting these values to the rest of the world, is about to cross the Rubicon. As the Bingham Centre for the Rule of Law explains in a recent report, “the central purpose of the Bill, to conclusively deem Rwanda to be a safe country in light of the recently concluded Rwanda Treaty, is contrary to the Rule of Law.” By banning the courts from considering that question in the future, its adoption “would amount to a legislative usurpation of the judicial function.”

The proposed bill would limit the right to challenge removal from Britain to asylum seekers who can prove that they risk ill-treatment in Rwanda (as opposed to onward refoulement) and thus prevent important sections of the ECHR and the Human Rights Act from being applied in the UK. It is likely to breach the right not to be returned to a country where one would face torture or persecution, as well as the right to an effective remedy (ECHR Article 13).

Already, Conservative ministers have advanced legislation to prevent people who arrive irregularly from claiming asylum. The United Nations High Commissioner for Refugees has condemned this measure as effectively extinguishing “the right of refugees to be recognised and protected in the UK.”

But the so-called “notwithstanding clauses” in the current Rwanda bill are of a different order of magnitude. They assert that the bill’s provisions override “any interpretation of international law” by a court or tribunal and any domestic law. With no apparent sense of irony, a treaty whose primary purpose is “to ensure that the United Kingdom’s international human rights obligations are met” is being given effect by legislation expressly overriding those obligations because the government does not trust the courts to apply the law as it wants.

Sunak contends that these laws are necessary to prevent time-consuming judicial reviews – deemed an abuse of human-rights legislation – and appears confident that they would deter British courts from agreeing to hear any further cases about Rwanda’s safety. Moreover, he has added a clause to the Rwanda bill stating that only a “Minister of the Crown” may decide whether to comply with an interim injunction from the European Court of Human Rights (ECtHR) regarding the removal of a person to Rwanda, while domestic courts must disregard any such injunction. Not only is this a clear breach of the ECHR, but it also disregards the ECtHR’s recent changes to its procedure for interim measures, which address the UK’s concerns.

When Sunak became prime minister, he had an opportunity to reaffirm core British values; Boris Johnson and Liz Truss, his predecessors, had played fast and loose with them for years. But while stopping short of formally leaving the ECHR – which the Conservative ultra-right wants – he appears to have renounced its core elements, including the quintessentially British right to go to court to defend or protect yourself, a product of the UK’s common-law heritage.

Still, Sunak could go even further. According to a recent statement from 10 Downing Street, the prime minister is considering “whether being part of the ECHR is in the UK’s long-term interests.” Sunak’s administration has also systematically undermined international law – not just the ECHR, but also the UN’s 1951 Refugee Convention and human-rights and humanitarian law more generally. The golden thread that connects the Magna Carta of 1215 and the Bill of Rights of 1689 to the ECHR of 1950 and the Human Rights Act of 1998 is being severed.

Ministers have been on this slippery slope for some time. Stripping asylum seekers of the right to have their claims decided in the UK follows from government decisions to house them in inferior accommodation and to deport them before completing the necessary checks to identify victims of modern slavery. (The legal requirement to investigate and prosecute the perpetrators of such offenses has also been ignored.) Moreover, the ministerial code was revised in 2015 to remove the obligation to comply with international law, while unprecedented new guidance requires government lawyers not to advise that a proposed policy is unlawful even if there is a high risk of a successful legal challenge.

Conservatives have targeted the ECHR for at least a decade. In 2013, then-Prime Minister David Cameron said that he would not rule out abandoning the ECHR if he won the next election, while his successors – Theresa May, Johnson, and Truss – and two of their home secretaries, Priti Patel and Suella Braverman, have explicitly called for the UK’s withdrawal. Braverman even asserted, with scant evidence, that “there are 100 million people around the world who could qualify for protection under our current laws,” and that she had to act because “they are coming here.” More recently, former Immigration Minister Robert Jenrick said that the government should leave the ECHR to stop small-boat crossings.

The Conservatives’ wholesale attack on the ECHR is born of their conviction that even a post-Brexit Britain does not enjoy enough “independence.” They believe that UK sovereignty must be unlimited, unrestricted, and accountable to no one, especially not a European court. Such an insular and xenophobic worldview undermines any modern concept of human rights and is unfit for an interconnected world in which as many as 280 million people live outside their country of birth.

With its efforts to undermine the ECHR, Britain is setting in motion a chain of events that will chip away at the rule of law and human rights around the world. Countries like Hungary and Turkey will inevitably cite the UK’s actions when they refuse to comply with the ECHR and similar instruments. The South African government recently proposed that it will choose which Refugee Convention obligations it should comply with. It will not be the last.