Galling as it is, this ruling may yet force us to break the chokehold of the European court
TO anyone who believes in British democracy, this is a deeply frustrating decision. Despite all the recent upheavals in Westminster, the Prime Minister retains a 56-seat majority: a convincing mandate delivered at a General Election.
Yet five senior judges have thwarted a Cabinet backed by millions of people.
Despite this democratic deficit, the judgment delivered by Lord Reed, the president of the court, and his panel of fellow justices may in fact help democracy in the long term – because it demonstrates Britain now has no choice.
We must break away from the European Convention on Human Rights.
Rishi Sunak said as much when he declared at a Downing Street press conference yesterday afternoon that Parliament will now declare Rwanda to be a safe haven for asylum seekers.
If that move is also blocked, the PM vowed he was ready to walk away from the ECHR, saying: ‘I will not allow a foreign court to block these flights.’
He was right to do so. Our government cannot pursue an immigration policy in the interests of the nation if we are beholden to a legal framework enforced from Europe. That is not to suggest that we should lessen our commitment to human rights. Quite the opposite. Britain has led the way for centuries in this field and must continue to set an example. To abdicate these ancient principles, and to surrender our duties to foreign institutions – which is what the Convention effectively is – would be a historic mistake.
I am the legal counsel for the Free Speech Union, and in our work protecting freedom of expression, we continually see the ECHR exerting an influence that is frequently undemocratic, and that sometimes suppresses the very rights we’re seeking to defend.
Yesterday, the justices applied the law as they interpreted it. The problem was that the law comes from Strasbourg, not London. The ECHR states that if there are substantial grounds to believe that there is a real risk deportees may face mistreatment, then that policy is against the law.
Crucially, potential refugees cannot be sent to Rwanda if there is a danger that the authorities there might decide to repatriate them to the country they first left – such as Afghanistan or Syria. The legal term for this is ‘refoulement’.
The Supreme Court judges unanimously agreed that the possibility of refoulement meant that deportations to Rwanda were illegal. Where lives were threatened, migrants could not be returned to their country of origin, either directly or indirectly.
The Home Office argued that there were no substantial grounds to believe that refoulement might take place. Rwanda was being well-rewarded financially for its part in the scheme, and British officials would be stationed in Kigali to oversee it.
But the justices of the Supreme Court decided there were grounds to believe there was a risk of refoulement in the future. This was the impossibly high and unreasonable bar set by the ECHR.
Step back for a minute. If individual migrants choose, at great expense and considerable risk to their own lives, to cross the English Channel in an overcrowded dinghy to land on our shores, they must bear at least some responsibility for what follows.
That doesn’t mean the Government should be free to return asylum seekers to possible torture and death. (Indeed, ministers took substantial measures to protect those scheduled to be deported to Rwanda.) But it does mean that the British state cannot be responsible for all remote consequences that asylum seekers could face at the hands of distant third parties.
In matters of such importance, democratic governments should be free to strike their own humane balance of risks and responsibilities.
Migrants already in France are at no risk of refoulement or other mistreatment. They would never be forced back to their countries of origin. Each one of them must have some reason for wanting to come to the UK, and our government has a duty to make them think again – not least for their own safety.
If we don’t try to deter them, some of the blame will lie with us for the horrific drownings in the Channel. And some of the blame will be ours, too, for the boom in organised crime and people-smuggling.
The Rwanda scheme was meant to be that deterrent. Britain isn’t eager to incur the cost of sending people thousands of miles away for their claims to be processed. We would far rather they stayed in the safety of mainland Europe.
So what’s next? A collision course with Strasbourg is now inevitable, as the next step for lawyers acting for migrants will be to ask the court to declare any new legislation incompatible with the Convention itself.
The PM must stiffen his spine and steel himself for a ‘High Noon’ showdown. Every possibility must be on the table, including an irrevocable break with the ECHR. Strasbourg must know that an obstinate ruling against the UK will lead to the departure of one of the founder members.
Already we can see what a hugely divisive business this has become. Former government adviser and loose cannon Dominic Cummings tweeted yesterday: ‘End the Paedos and Terrorists Defence
‘The ECHR sets an impossibly high bar’
‘Their powers are not mandatory around the world’
Act (aka the European Convention on Human Rights/ Human Rights Act).’
That is highly provocative, but if we dial down such robust rhetoric, we can still make very strong criticisms. One of the most important is that human rights law has a tendency to become a sort of legal superpower, an entire continent of law with domain over the whole political process.
International courts often stand above elected governments, handing down their edicts. Both politicians and judges end up in awe of them, offering a sheepish sort of obedience, aware that there is no way to oppose them.
It’s healthy for us to stand back and recognise that these institutions are controversial, and that their powers are not mandatory all over the world. Australia does not recognise the ECHR or anything equivalent to it, and neither does America.
If the consequence of yesterday’s ruling, however galling in the short term, is to force Britain to stand up to the ECHR, and to break its choke-hold on our justice system, that is something to welcome. And our democracy will be much the better for it.
Dr Bryn Harris is Chief Legal Counsel of the Free Speech Union