Joanna Cherry: The Rwanda bill shows a party abandoning human rights

Rather than celebrating this momentous occasion, the UK Government is introducing a bill which fundamentally breaches the UK’s obligations to uphold the human rights of asylum seekers under international laws to which the UK is a signatory, including the Refugee Convention and the European Convention on Human Rights (ECHR).

The ECHR, signed just a couple of years after the UDHR, was the first instrument to crystallise and give binding effect to the rights set out in the Universal Declaration of Human Rights. Those rights were finally made part of the domestic law of the United Kingdom with the passing of the Scotland Act and the Human Rights Act (HRA) in 1998.

Twenty-five years later, the UK Government is merrily trashing its commitments to the universality of those human rights and the ultimate jurisdiction of the European Court of Human Rights.

The Safety of Rwanda (Asylum and Immigration) Bill starts with a declaration that the Home Secretary is unable to make the statement required by the Human Rights Act that the provisions of the bill are compatible with Convention Rights.

In a sense that tells you all you need to know, albeit that James Cleverly seemed a bit coy about it when questioned closely in the Commons as he made an emergency statement on Wednesday evening.

READ MORE: ‘It is beneath us’: Tory MPs bicker over ‘childish’ social media post

However, the bill is not just an attack on human rights but also on the rule of law which requires the UK to honour its international legal obligations and the principle of the separation of powers between executive, legislature, and judiciary. The Home Secretary might as well drive a coach and horses through the British constitution, such as it exists.

Three weeks ago, the UK Supreme Court (UKSC) ruled that asylum seekers could not be sent to Rwanda because it is not a safe country. They did so having carefully considered evidence about the position on the ground in Rwanda. The first thing the bill does is to declare that, notwithstanding that finding by the highest court in the UK, Rwanda is henceforth to be considered a safe country and no court can look beyond that statement.

It is extraordinary for the law to state that the facts are other than what they are, and then to oust the jurisdiction of the courts from determining whether that is the case. These are not just my views but those of Jonathan Sumption KC, a distinguished former UKSC judge who is most definitely not a lefty lawyer.

Parliament might as well declare the moon is made of cream cheese. Lord Sumption goes on to point out that ousting the jurisdiction of the courts is a fundamental breach of Article 6 of the ECHR which among other things guarantees everyone the right of access to a court.

Notwithstanding that, the bill will prevent our domestic courts from hearing any case which suggests that sending someone to Rwanda might breach the HRA or the Refugee Convention. Various provisions of the HRA are to be disapplied and any domestic law that might prevent Rwanda from being considered a safe country must also be ignored.

%image('16521939', type="article-full", alt="Suella Braverman's views on human rights are gaining ground in the Conservative Party")

Any interim order issued by the European Court of Human Rights to prevent the removal of a person to Rwanda must also be ignored by the UK’s domestic courts. It will be up to a minister of the Crown to decide whether to comply with the interim measure and I think we all know which way that decision will go.

Yet even this red meat is not enough for some of the more crazed Tory backbenchers, including former ministers Suella Braverman and Robert Jenrick, the latter resigning from his post as immigration minister as soon as the bill was introduced.

What’s bothering them is the part of the bill which will preserve the right of an asylum seeker threatened with removal to Rwanda to mount a court challenge on the basis that Rwanda is not a safe country for them based on their individual circumstances.

However, they would need to produce “compelling evidence” and, in the meantime, an interim order to prevent them from being sent to Rwanda while they wait for the outcome of their claim could only be granted if the court or tribunal were satisfied that they faced “a real, imminent and foreseeable risk of serious and irreversible harm”.

Sumption says in practice this means that flights to Rwanda will only be stopped in the most extreme circumstances. I think he’s right about that. The real reason why Suella and Co are so annoyed is because they wanted this bill to disapply the HRA and the ECHR in their entirety to asylum cases as the thin end of the wedge to repealing the HRA and leaving the ECHR completely.

READ MORE: Keir Starmer faces pro-ceasefire protests as he arrives into Glasgow

It is ironic that the only reason Rishi Sunak has not gone as far as Suella and Co wanted is because the Rwandan government dug their heels in and said that that they would not accept the UK basing their scheme on legislation that could be considered in breach of their international law obligations.

Clearly Rishi thinks he is just inside that line. I disagree and so will many based on the Government’s own declaration on the face of the bill. Yet, undaunted, at his press conference yesterday, Sunak told us that should anyone take a court challenge against this scheme directly to the European Court of Justice in Strasbourg and win then he would do whatever is necessary to uphold the express wishes of “our sovereign parliament”. It seems the option of leaving the ECHR is most definitely still on the table.

So, what happens next?

Well, the bill has a second reading in parliament next week and we are told that the Government want it passed by the Commons by Christmas on a rushed timetable. Suella and Co will put down amendments to make it more severe but ultimately will they vote against it?

What will Labour do? The SNP will oppose it root and branch and the Joint Committee on Human Rights will be taking a hard look at the bill. Once it gets to the House of Lords it is likely to get bogged down with a lot of amendments.

Ultimately if passed the bill could face legal challenges. Its interference with the jurisdiction of the Scottish courts might face challenge in Scotland’s Supreme Court.

READ MORE: How long would it have taken Alex Cole-Hamilton to walk from bar to Chamber?

The right to judicial review in Scotland is protected under Article 19 of the Treaty of Union and it is a devolved matter under the Scotland Act 2016. It would not be the first time the UK Government got a bloody nose from constitutional legal action started in Scotland – that is how we stopped the unlawful prorogation of parliament.

Separately, someone might want to seek a declaration that the bill in its entirety is incompatible with the HRA but, as the domestic courts cannot strike down an act of the UK parliament, it would be up to parliament what to do about any such declaration.

Finally, there would be nothing to stop asylum seekers going direct to the Strasbourg court on the basis that they would have no domestic remedy and if the European Court of Human Rights ruled in their favour that’s where the real fireworks would begin.

However, something tells me we are going to have fireworks in Parliament over the next fortnight and that the Prime Minister will be taking fire from behind him as well as from the SNP benches.