David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the 2019 general election.
“Respecting the rule of law means respecting the impartial judgments of our independent courts,” said Alex Chalk, the Lord Chancellor, on X/Twitter last week. “Judges apply the law without fear or favour – a longstanding principle of our democratic constitution.”
Quite right, too. It might have been a statement of the obvious but it needed saying, not least because Lee Anderson – the actual Deputy Chairman of the Conservative Party – had responded to the Supreme Court’s judgment on the Government’s Rwanda policy by arguing that “we should ignore the laws and send [those arriving in the UK in small boats] back on the same day”.
Ignore the laws? That is an extraordinary and surely an unacceptable opinion for the Deputy Chairman of the Conservative Party to hold? Not according to the Prime Minister. Anderson was merely reflecting “the strength of feeling on this issue”.
There are, it is true, strong feelings about illegal immigration. The Government has leant into it, making it not only one of Rishi Sunak’s five priorities but also setting out a very ambitious target: to stop the boats.
It was always unclear how the complete elimination of small boats was going to be achieved but great weight was placed on the Rwanda policy. Those arriving on small boats (or, at least, a few hundred of them) were going to be sent to Rwanda to have their asylum application processed and, if successful, they would be allowed to stay not in the UK but Rwanda. The hope was that this would deter asylum seekers coming to the UK.
It was always clear that this was a policy that came with great legal risk, not least because there was plenty of evidence showing that Rwanda would be incapable or unwilling to comply with the standards to which the UK has agreed and for which we have legislated. This evidence was sufficient for the Supreme Court to reject unanimously the Government’s appeal against the previous finding that the policy was unlawful.
The Government has broadly three choices (ignoring the laws not being one of them).
It could abandon the Rwanda policy. After all, it only applied to a few hundred arrivals out of the many thousands that arrive and we could never be confident that the deterrent effect would be as powerful as hoped.
Politically, however, this is difficult given the weight the Government has placed on the policy.
The second option – the one adopted by the Government – is to try to reassure the Courts that Rwanda would meet the necessary standards. A treaty, rather than a mere memorandum of understanding, with Rwanda might be more enforceable, for example. But the Supreme Court’s criticisms of the inadequacies of the Rwandan justice system and political and administrative culture look very difficult to overcome in a short period of time.
For some, this leads to the conclusion that a more radical approach is needed. The Government, they argue, should pass domestic legislation that removes all the legal obstacles to sending asylum seekers to Rwanda.
“The entirety of the Human Rights Act and the European Convention on Human Rights, and other relevant obligations, or legislation, including the Refugee Convention, must be disapplied by way of clear ‘notwithstanding’ clauses” argued Suella Braverman. She went on to state that “judicial review, all common law challenges and all injunctive relief… must be expressly excluded.”
Blimey. Let us be clear what is being proposed. Disapplying or, to put it another way, repudiating the ECHR would put us in a miserable little club of European countries consisting of Russia and Belarus, and cause enormous difficulties for the Northern Ireland peace process, aspects of the Trade and Cooperation Agreement, and our wider relationship with the EU.
But that is not all. As Sir Jonathan Jones, former head of the Government Legal Department, put it:
“…she wants the UK to breach every relevant international treaty on torture, mis-treatment, detention or fair process; she wants to remove *every right of legal challenge* in the UK courts – even if (say) Home Office officials make wholly flawed, capricious or irrational decisions; or the wrong person is accidentally detained or put on a plane or conditions in Rwanda, or even UK detention centres, become intolerable; or… people are detained indefinitely pending removal”.
He described it as “an attempt to rule outside the law”.
No wonder Damian Green described this statement as “the most unconservative statement I have ever heard from a Conservative politician. Giving the state the explicit power to override every legal constraint is what Putin and Xi do”.
Remarkably, her proposal was not the daftest policy put forward by a recent senior figure in government. Dominic Cummings – no fan of the Rwanda “farce”, as he sees it – set out what he proposed in 2020 to address the issue. He too favoured withdrawal from the ECHR and every other relevant aspect of international law. His plan was also to “deploy Navy + drones to stop & turn back ALL boats, destroy the boats themselves on the shore, kill/capture some of the mafia behind them pour encourager les autres”.
Launching drone attacks on French beaches? Extra judicial killings? What could possibly go wrong?
Both Braverman and Cummings approach the entire debate on the basis that international law is simply a hindrance and even an insult to democracy.
They are not alone in the Tory Party. When the Government comes forward with primary legislation to address the Supreme Court Rwanda judgment, a sizable rebellion from Conservative MPs is expected on amendments along the lines suggested by Braverman. “Notwithstanding” will be the political word of the moment.
The argument will be made that international law is not proper law in contrast to domestic law. Of course, international law has been incorporated into domestic law by legislation passed by Parliament but, the argument goes, Parliament can always repeal it simply by incorporating a “notwithstanding” clause.
Even if that is correct, we should, however, go back to first principles. Why is the rule of law a good idea in the first place? It provides greater certainty and stability and imposes boundaries upon behaviour that both reduces conflict and finds a means of resolving conflicts when they exist.
Without adherence to the rule of law, life becomes less certain, less secure and societies become less cohesive. Power that is unconstrained as some favour (“judicial review, all common law challenges and all injunctive relief… must be expressly excluded”) is more likely to be abused.
The same arguments apply to international law. Complex problems often require international cooperation, and cooperation is more likely to be effective within a framework of mutually respected laws.
Adherence to international laws also helps establish international norms that increase the pressures on other countries to behave well, replacing the law of the jungle with the rule of law; this is especially true for an outward-looking, internationalist nation like the UK.
In case anyone thinks this is a rather wet, liberal position, it is worth remembering Margaret Thatcher’s remarks after the Falklands Conflict when she came up with answer to the familiar Dean Acheson line that Britain had lost an empire and not found a role: “I believe Britain has now found a role. It is in upholding international law and teaching the nations of the world how to live.”
The didacticism may be unfashionable but the point remains. Upholding the rule of law, including international law, is what the UK and the Conservatives should be about.