No more magical thinking?

We must amend Suella’s law, says Suella

Suella Braverman wants parliament to amend the Illegal Migration Act 2023, passed by parliament in July though still only partly in force.

But which home secretary introduced the legislation in March, promising MPs that it would help “stop the boats”? It was, of course, Braverman.

Waving goodbye?

We now know it was not the bill she had wanted. After being sacked on Monday, Braverman told Rishi Sunak on Tuesday that he had not allowed her to include the “notwithstanding” clauses she needed to achieve her objectives.

Still, her legislation makes significant inroads into human rights law. I mentioned two of these here on Wednesday. And you don’t have to read any further than section 1 of the act to read this:

(5) Section 3 of the Human Rights Act 1998 (interpretation of legislation) does not apply in relation to provision made by or by virtue of this Act.

In her Telegraph article today, Braverman says that Sunak’s proposed emergency legislation “must exclude all avenues of legal challenge”:

The entirety of the Human Rights Act and European Convention on Human Rights, and other relevant international obligations, or legislation, including the Refugee Convention, must be disapplied by way of clear “notwithstanding” clauses.

Judicial Review, all common law challenges, and all injunctive relief, including the suspensive challenges available under the Illegal Migration Act must be expressly excluded.

Individuals would, however, be given the chance to demonstrate that they had entered the country legally, were under 18, or were medically unfit to fly — but Home Office decisions on these claims could not be challenged in court.

That’s not so different from what Lee Anderson MP, a deputy chairman of the Conservative Party, said on Wednesday:

My take is we should just put the planes in the air now and send them to Rwanda and show strength… I think we should ignore the laws and send them straight back the same day.

Braverman could say that her attempts to oust the jurisdiction of the courts would have been authorised by parliament. But, as a former attorney general, Braverman knows that domestic legislation cannot authorise a breach of international law.

The Supreme Court explained it all very clearly on Wednesday:

Under international law, states have the right to control the entry, residence and expulsion of aliens, and to counter attempts to circumvent immigration restrictions, subject to their treaty obligations and to any relevant principles of customary international law.

One limitation is the principle of non-refoulement, which means a state can’t send asylum-seekers back to a country where they would face danger.

That, said the court, was part of the Refugee Convention, the UN Convention against Torture, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. And then it added this:

It may be that the principle of non-refoulement also forms part of customary international law…

The significance of non-refoulement being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect.

So even if the UK were to negotiate its way out of four international treaties, it would still be breaking international law by sending asylum-seekers to a country that could not be trusted to keep them safe.

But perhaps that’s unfair on Rwanda. Here’s a legal assessment that strikes me as entirely sound:

Amending our agreement with Rwanda and converting it into a treaty, even with explicit obligations on non-refoulement, will not solve the fundamental issue. 

We lost in the Supreme Court because the judges determined that Rwanda cannot be trusted to fulfil the commitments we asked of them on non-refoulement, not because those promises were embodied in one type of legal instrument, a memorandum, rather than another, a treaty.

Who wrote that? It was, of course, Braverman.

To be fair, she is calling for “practical steps to improve Rwanda’s asylum system”. There is talk of government officials being sent out to help. But would that really deal with the fundamental problems identified by the Supreme Court? Even Braverman sounded sceptical.

Who decides?

The fundamental question she raises is

where does ultimate authority in the United Kingdom sit? Is it with the British people and their elected representatives in parliament? Or is it with the vague, shifting, and unaccountable concept of “international law?

Any lawyer will tell you the answer. Parliament makes the law but the courts interpret it. Parliament, being sovereign, can change the law. But the courts can still decide what the legislation means.

International treaties are signed by ministers under prerogative powers. But all ministers are answerable to parliament. And parliament has the last word on treaties, as we saw from the European Union (Withdrawal) Act 2018.

We describe this as a system of checks and balances. If any institution can be described as having the ultimate authority in the United Kingdom, it must be parliament. But parliament cannot stop the incoming boats just by saying so. Even King Canute knew that.

As someone wrote this morning, “there must be no more magical thinking”.