Ever since Brenda Hale stepped down as president of the supreme court in 2020, it has not been difficult to find lawyers who worried that her more judicially conservative successor, Robert Reed, would be anxious to avoid standing up to the UK government in the way that the Hale court did so dramatically over the prorogation of parliament in 2019.
Those fears now look to have been seriously misjudged, after the Reed court today unanimously dismissed the government’s policy of transferring asylum seekers to Rwanda. Lord Reed is a different kind of judicial thinker from Lady Hale. He can certainly argue that the judgment was impeccably conservative in legal terms. But the ruling is in many ways a more consequential and devastating rebuff to UK government and UK politics than even the Hale judgment.
The prorogation judgment, after all, stymied Boris Johnson’s sneaky attempt to get a long suspension of the House of Commons. But parliament was soon prorogued in the proper manner, and politics then resumed. The Rwanda judgment, by contrast, drives a coach and horses through a signature policy on migration, thus leaving the underlying cross-Channel migration problem completely unsolved. At the same time, it is also an explicit refutation of the argument that the European convention on human rights (ECHR) is the easily addressed cause of the defeat, because that is quite simply untrue. It is hard to see where the policy goes from here, other than to the knacker’s yard.
Not surprisingly, this all started with Johnson. A year and a half ago, he made the announcement that anyone entering the UK illegally could now be “relocated” to Rwanda. The central African state, he said, was “one of the safest countries in the world, globally recognised for its record on welcoming and integrating migrants”. There would be no cap on the numbers of asylum seekers affected and Rwanda would have the capacity “to resettle tens of thousands of people”. The policy was “fully compliant” with the government’s legal obligations.
Except that it wasn’t. Those claims were untrue. Rwanda was not the paragon of legality, security and fairness that Johnson implied. It has a bad human rights record and a poor asylum record, and the independence of its courts from government is in serious doubt. It is not, as the law here requires it to be in order to qualify as an appropriate destination, a “safe third country”. On the contrary. It is an unsafe one. Britain has already paid £140m to Rwanda for this deal, but not a single asylum seeker has ever been relocated there. Now none is ever likely to be.
This ought to have been clear at the outset – and to many it was. No one who has studied Rwanda is in doubt about its continuing problems as a destination of this kind. The United Nations and Human Rights Watch are among the organisations that have drawn attention to the human rights and criminal justice violations there. Rwanda’s similar deal with Israel collapsed because Rwanda did not carry out its promise not to return asylum seekers to unsafe countries. The UN high commission for refugees gave evidence on this that was hard to ignore. The supreme court grasped all this, as the majority in the court of appeal had also done. But the UK government never really wanted to know.
In some respects, it still does not. Rishi Sunak gave his first responses to the supreme court judgment at prime minister’s questions and in a press conference today. He implied that the government was already well on the way to securing changes that would in fact allow it to comply with the ruling. There would be a new treaty with Rwanda and emergency legislation deeming the country “safe”, and the flights could then begin.
Forget it. Even Sunak himself is unlikely to believe what he said today. Nor is the new home secretary, James Cleverly, who gave a more colourful and relaxed reiteration of the same view in a statement to the Commons. The reality is that they cannot easily make these changes. The situation in Rwanda will not permit it. A new arrangement would come before courts that would be bound by this week’s ruling. A Labour government would be unlikely to proceed anyway. The policy is dead. All else is fantasy.
The same is almost true of the pretence that withdrawing from the ECHR, or the annulment of the UK Human Rights Act, would magically permit the UK to put the Rwanda policy into practice. The supreme court could hardly have been clearer that this would not change the legal grounds that would apply in future cases. But this is an article of dogma for parts of the Tory party. Again, they are not listening.
Non-refoulement – in other words the commitment not to return an asylum seeker to a place where they might be at risk – is not dreamed up in Strasbourg to annoy the Tory party or subvert UK sovereignty. It is a core principle of international law. It is written into the UN convention. And it is part of UK domestic law already, not only through the Human Rights Act but through at least three pieces of immigration law.
Cringing to the prejudices of his backbenchers, Sunak implied he would not hesitate to “revisit” these laws and conventions in order to overcome the judgment’s verdict. But this is show. It is not going to happen. He says these things to make the Tory party’s nationalist wing believe he is on their side. More fool them if they believe it. That does not mean that Suella Braverman and others will not succeed one of these days in getting the pledge into the party manifesto.
Instead, Theresa May was on the money today when she told Cleverly that the supreme court’s judgment was not rooted in the European convention. She gets it. Cleverly probably does too. But the Europhobic part of the Tory party and the rightwing press will not listen to what they do not want to hear. The attempt to turn this whole episode into an opportunity to revive the Brexit campaign by attacking the European human rights system will continue. But the policy is nothing more than a gimmick. It solves nothing at all.
The supreme court went out of its way to say it was concerned only with the law and not with politics. That claim is honestly and sincerely made. But the judgment has devastating political consequences. From first to last, the Rwanda policy has been a piece of performance politics, a pretend answer to the genuine problem of the small boats and the awful backlog in asylum cases. The judges, a shining light of sanity in what is currently a mad political world, have now called it out. They have stood up for the law, as they should. If only ministers would do the same. But that would be fantasy too.
Martin Kettle is a Guardian columnist
Do you have an opinion on the issues raised in this article? If you would like to submit a response of up to 300 words by email to be considered for publication in our letters section, please click here.
