To leave or not to leave? That’s the question Rishi Sunak might soon have to answer when the Rwanda asylum plan returns to the political fore very shortly. Fears are growing inside Government that the current legislative wrangling might pale in comparison to a much greater challenge rearing its head. Even after the Safety of Rwanda Bill has made it onto the statute books, the showdown on the deportation plans for illegal asylum seekers is approaching its final, most difficult hurdle: the European Court of Human Rights (ECtHR).
Here’s what the next few weeks could look like. Parliament returns from Easter recess on 15 April with the Rwanda bill at the top of the agenda for MPs to vote on. Immediately, the legislation is expected to ping pong back to the House of Lords on the 16th one last time, and back to the Commons for the final vote on the 17th. The legislation will toddle off for Royal Assent and preparations will commence for what ministers desperately hope will be the long-awaited first deportation flight, along with the deterrent effect for small boats crossing the channel.
But as the plane trundles towards the runway, Downing Street will be braced for an interim injunction from the ECtHR under section 39 — the so-called “pyjama injunctions” due to their frequent late night delivery. It was one of these injunctions back in June 2022 that prompted years of legal challenges in the High and Supreme Courts, leading to Sunak introducing legislation to assert Parliament’s primacy on the issue. With such an outcome likely, the Prime Minister has already said that he will simply dismiss it. The court’s president has issued a warning shot that she will force the UK to comply with any section 39 orders.
And then what? If a decisive ruling is made against the Rwanda scheme, such as a permanent injunction, Sunak will have to decide whether to quit the convention altogether. Since the inception of the Rwanda scheme under Boris Johnson, three prime ministers have argued (on the advice of countless government lawyers) it adheres to international law — albeit at the outer edges. But as we enter the showdown of this debate, the boundaries of the UK’s obligations are going to be tested.
Let’s be under no illusions, leaving the European Convention on Human Rights (ECHR) is not straightforward or cost-free. Many of the UK’s international agreements are currently underpinned by the convention, including the Good Friday Agreement and the Five Eyes intelligence sharing agreement. These treaties were hard won and have been critical for upholding security at home and abroad, as well as cementing the UK’s place in the world. Unpicking either of them would be complex and would require a focus on detail that often eluded the UK during the tortuous Brexit years.
But, life beyond the ECHR is something Sunak should be prepared to think about if there are no other options left. This week he gave his strongest hint yet that this is where his thinking is going. “I believe that border security and controlling illegal migration is more important than our membership of any foreign court,” he told The Sun. With nine out of 10 constituencies in favour of both lower migration and tougher border controls, it is undoubtedly a potent issue. With small boat crossings likely to continue to rise over the summer months, pressure will increase further.
If the Government finds it is stymied by the ECHR over the Rwanda plan, it needs an honest conversation about what renegotiation or withdrawal from the convention looks like. First it has to win the argument. Public opinion on the ECHR is murky. One survey from last year (citing the convention by name) found 57 per cent in favour of staying in versus 22 per cent who wanted to leave. Yet a more generic survey, which proposed replacing “the current European system of human rights laws…with new British laws that protect rights like free speech but enable the government to promptly deport” found more favour. According to Deltapoll, 54 per cent would support this proposition with 27 per cent against.
You can imagine this is how the question would be proposed, especially from the likes of former Supreme Court justice Lord Sumption, who has made the most cogent case for leaving based on what he sees as the overreach of Strasbourg’s judges and the unreformable nature of the court. Dominic Cummings has set out what a more populist campaign against the convention would look like — going beyond small boats to the ability to deport foreign criminals.
But it would be unwise to seek a referendum on this issue: as we saw in 2016, creating a binary divide on such a contentious point will further stoke potent feelings. As Cabinet minister Michael Gove advised today, “never, ever have a referendum on anything”. If the future of ECHR is on the table, it should be a question for an election manifesto. But we are not there yet and Sunak should not cross the road for a fight with the ECHR — despite some right-leaning MPs aching for a fight.
The Government must be able to address the most important issues facing the British public, pure and simple. Nor should we forget that Britain has an extremely strong record of liberalism, constitutionalism and respect for rights that long predates the ECHR. If we find in the coming weeks that the judges can’t tolerate the bill in its present form, the Prime Minister will have done everything in his power to stop the boats while seeking to placate the court. If there is to be a fight, let them start it — and Sunak should be prepared for a bloody battle ahead.
Sebastian Payne is director of the centre-right think-tank Onward
Leaving the ECHR is a bloody fight Sunak must be prepared to have
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04.04.2024
To leave or not to leave? That’s the question Rishi Sunak might soon have to answer when the Rwanda asylum plan returns to the political fore very shortly. Fears are growing inside Government that the current legislative wrangling might pale in comparison to a much greater challenge rearing its head. Even after the Safety of Rwanda Bill has made it onto the statute books, the showdown on the deportation plans for illegal asylum seekers is approaching its final, most difficult hurdle: the European Court of Human Rights (ECtHR).
Here’s what the next few weeks could look like. Parliament returns from Easter recess on 15 April with the Rwanda bill at the top of the agenda for MPs to vote on. Immediately, the legislation is expected to ping pong back to the House of Lords on the 16th one last time, and back to the Commons for the final vote on the 17th. The legislation will toddle off for Royal Assent and preparations will commence for what ministers desperately hope will be the long-awaited first deportation flight, along with the deterrent effect for small boats crossing the channel.
But as the plane trundles towards the runway, Downing Street will be braced for an interim injunction from the ECtHR under section 39 — the so-called “pyjama injunctions” due to their frequent late night delivery. It was one of these injunctions back in June 2022 that prompted years of legal challenges in the High and........
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