WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 19 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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The Decline and Fall of the Conservative Mind

The Decline and Fall of the Conservative Mind

Yesterday, the European Research Group’s ‘star chamber’ of legal experts delivered their verdict on the Safety of Rwanda Bill. In its current form the bill is only a ‘partial and incomplete solution to the problem of illegal immigration’. What it is missing is the absolute repudiation of the authority of the European Convention on Human Rights and of international law.

The ERG’s members would have been satisfied with nothing less. A faction on the far right of the Conservative Party, they are little-Englanders through and through. Their raison d’etre was to free the UK from the clutches of the European Union. Having achieved this, they have turned their sights onto any other institution they think limits Britain’s sovereignty.

In the parochial world of the ERG, the only thing that matters is the nation state. And the only nation state that matters is Britain.  Its members are obsessed with the fiction of British exceptionalism. Their default assumption is that Britain should bestride the world like a colossus, an imperial power once more. But this fantasy is checked only by Britain’s participation in the global community. The compromises, checks, and balances that come from joining institutions like the EU or the Council of Europe, signing treaties like the Refugee Convention or the ECHR, and respecting norms and principles like humanitarian law are not merely unnecessary, but harmful. They are shackles that must be thrown off.

Rwanda is a case in point. While the ERG are happy for Rwanda to comply with international law, and for the treaty to contain limitations on Rwandan decision-making, they are concerned with the fact that the Rwanda Bill also imposes limitations on British decision-making. The bill may contain provisions stripping away much of the Human Rights Act, judicial oversight, and fundamentals of international law, but this is not enough. It must go harder, better, faster, stronger.

Of particular concern to this ‘star chamber’ of legal experts (comprised of Bill Cash MP, a solicitor last employed in 1978, David Jones MP, a high street solicitor who qualified in 1976, Barnabas Reynolds, a solicitor specialising in financial institution law, and Martin Howe KC, a barrister specialising in patent and copyright law) is that the bill ‘remains vulnerable to international law arguments’.  While they accept the prime minister’s claim that this is the ‘toughest piece of migration legislation’ ever put forward in the UK, they think it needs to be tougher. Not only should the bill comprehensively exclude the presumption that Parliament is legislating in accordance with international law, but also the ‘human rights provisions of the Belfast (Good Friday) Agreement, the Trade and Cooperation Agreement 2020 and the other treaties to which the UK is a party’.

No legislation has ever gone this far. No parliament has ever considered the whole corpus of international law and unceremoniously dumped it. Even divinely appointed medieval monarchs thought they ought to accept some limitation on their god-given right to rule. Some of the principles the ERG proposes dismissing with can be traced back to the Crusades and to the dawn of western civilisation. They are foundational norms of our society that have guided governments for centuries. But the ERG thinks Britain should dispense with them so as to properly discourage migrants.  Pour encourager les autres, indeed.

Not only does the star chamber want international law disapplied, but it wants the legislation’s one saving grace taken out for good measure.  In its current form, the bill gives asylum-seekers the right to appeal their removal to Rwanda. If they can prove that they would face a specific and identifiable harm in Rwanda, they would not be deported. For instance, Rwandan dissidents currently seeking safe haven from Kagame’s government in the UK would be able to argue the fact they are targets of the Rwandan state should mean they are not deported there. The ERG would strip them of this right. (It should go without saying that a government people run from is perhaps not a government the U.K. should be embracing.)

The consequence denying each and every asylum seeker the individual right of appeal would be devastating. Rwanda is a country that persecutes dissidents, sexual minorities, and ethnic groups, to name but three.  When someone who is gay or who has spoken out against Kagame’s regime is deported to Rwanda from the UK, they aren’t going to decide not to persecute them just because the UK sent them. Every single person from Afghanistan, Syria and Iraq who has sought asylum in Rwanda has been turned away. If arriving from a war zone doesn’t warrant special treatment, arriving from the UK definitely won’t. Should the government give in to the ERG, and try and send asylum seekers to Rwanda without any right of appeal, all of them will suffer and some will die. And the UK will not merely have turned a blind eye, but will have willingly collaborated.

If Parliament was to incorporate the reforms mooted by this isolationist group, it would liberate Britain. We would be reviled by the global community, cast out as lepers having paid huge sums of money (nearly £300m at last count) to contract leprosy. Not even North Korea or Russia have legislation on their books proscribing the Refugee Convention or forbidding courts from interpreting legislation in line with international norms.

But what is most alarming about this tragic litany is not that some rogue faction of MPs thinks it, but that that faction has leverage among the Conservative party and government. In any sane world, Lee Anderson MP (a member of the ERG and of a newer hard-right faction, the New Conservatives) would be on the very fringes of the party. Instead, he is the Conservative Party’s deputy chairman.   Asking him for his views on immigration is like talking to a rabid dog. All you get is a rampage of barks and frothing at the mouth. But rather than putting him down, the Conservatives have put him front and centre, helping set the party agenda.

Even without the intervention of the ERG and its star chamber, the government’s Rwanda legislation is repugnant. It is without precedent. No British government has ever proposed a bill explicitly violating fundamental norms of international law and setting aside fundamental human rights. Faced with a few thousand refugees in boats, its response is not to introduce effective legal mechanisms for their appeals to be heard, but to label them an existential threat and to send them to persecution, torture or death. Britain has become exceptional. But not in the way the ERG thinks.