Tory split on human rights

Cabinet minister says party will campaign to leave European treaty

Senior Conservatives — including a cabinet minister — say their party is likely to campaign to leave the European Convention on Human Rights at the next election if Rwanda flights continue to be blocked, according to a report this morning by the BBC’s chief political correspondent Nick Eardley.

The cabinet minister who has campaigned most actively against the human rights court — and the cabinet minister who is responsible for the policy of sending asylum-seekers to Rwanda — is of course the home secretary Suella Braverman.

As the BBC news website helpfully reminds us, she said in March that it was a court “which is politicised, it is interventionist and it doesn’t always follow a process that we would recognise as being due process”.

Braverman added:

In a whole range of policy areas, I think sometimes the jurisprudence from the Strasbourg court is at odds with the will of parliament or British values more generally.

The human rights court is run by the 46-nation Council of Europe. No country may join the Council of Europe unless it accepts the court’s jurisdiction by signing the European Convention on Human Rights. It must follow that a country that withdraws from the convention must leave the Council of Europe. Russia was expelled from the Council of Europe last year after invading Ukraine.

It is not UK government policy to withdraw from the human rights convention or the Council of Europe. All ministers are required to support government policy under the principle of collective cabinet responsibility.

Eardley’s report says there was “frustration” in government last summer after a judge at a European court stopped flights to Rwanda taking off. That decision was challenged unsuccessfully in Strasbourg by the UK government. It was described by the court at the time as “an interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to first consider those issues”.

That opportunity has already taken more than a year and will not be completed before the late autumn.

Suella Braverman addressing MPs on 19 December 2022

Last December, Braverman effectively defeated a challenge by asylum-seekers in the High Court. She told MPs she had “huge confidence in the judgment” delivered that day.

Judges concluded that it was lawful for the government to make arrangements for relocating asylum seekers to Rwanda — and for their asylum claims to be determined in Rwanda rather than in the United Kingdom. However, the home secretary needed to decide whether there was anything about each person’s particular circumstances which meant that his or her asylum claim should be decided in the United Kingdom — or whether there were other reasons why that person should not be relocated to Rwanda. As the home secretary had not properly considered the circumstances of the eight individual claimants whose cases were before the court, those claims would be referred back to her for reconsideration.

The High Court decision was overturned by the Court of Appeal in June.

Lord Burnett of Maldon, the lord chief justice, agreed with the government. He thought that an agreement with Rwanda in 2022 — taken together with assurances from the Rwandan government — meant there was no real risk that asylum-seekers flown from the UK would be sent on to countries where they would face persecution or other inhumane treatment, which would contradict the Human Rights Act.

But his two colleagues in the Court of Appeal, the master of the rolls Sir Geoffrey Vos, and the vice-president of the civil division, Lord Justice Underhill, disagreed. In their view, deficiencies in Rwanda’s asylum system meant there were substantial grounds for thinking that people with a good asylum claim would face precisely that risk. As Lord Burnett was outnumbered two to one, the challenge to the Rwanda policy succeeded.

That ruling can be seen as vindicating the Strasbourg judge’s decision to grant a temporary order while the issue was considered by judges in the UK.

Permission to appeal against the decision was granted shortly afterwards and the Supreme Court is expected to hear the government’s appeal in October. But Eardley reports today that “senior ministers are privately unsure about whether they can overturn the ruling”.

He goes on to say:

The government also now has the power to ignore certain ECHR interim injunctions relating to border security.

This must be a reference to section 55 of the Illegal Migration Act 2023. As far as I can see, that section has not yet been brought into force.

Explaining its effect in the House of Lords, a Home Office minister said:

This will mean that a minister may suspend removal in response to a Rule 39 interim measure but, crucially, is not bound by UK law to do so.

The key phrase there is “UK law”. International treaty obligations — including the human rights convention — remain unaffected.