Opinion: Court ruling a triumph of law over dangerous politics

One of Prime Minister Rishi Sunak’s key pledges in January 2023 was to ‘stop the boats’. Central to the plan is the UK-Rwanda Memorandum of Understanding, agreed in April 2022.

Under the agreement Rwanda promised to accept and consider for asylum persons removed from the UK under its law and in line with its international legal obligations. The UK, for its part, agreed to pay an initial sum of £120m to Rwanda.

The Rwandan plan has become a focal point of a conflict between law and politics. On the one hand is the political desire to display a position of strength and effectiveness and to highlight that the UK is a sovereign state that can control its borders and, through that, keep out people seeking asylum.

While the plan arose from the legitimate policy concern of managing immigration in an orderly and beneficial manner, it has become politicised by the current Government.

On the other hand are important international agreements. The Refugee Convention 1951 and the European Convention on Human Rights 1950 provide the basis of global refugee protection and human rights in Europe. These agreements are widely ratified, with 146 and 46 parties respectively. The Asylum and Immigration Appeals Act 1993 and the Human Rights Act 1998 give these treaties force in UK law, amongst other statutes.

The clash between the Government’s policy and the law reached the highest court in the land, with the Supreme Court dismissing the Government’s appeal. The crux of its judgment turned upon the fate of persons subjected to transfer to Rwanda. Like the Court of Appeal before it, the Supreme Court found that there was cogent evidence that the asylum system in Rwanda was deficient.

In this clash between law and politics, the law has won. The importance of the rule of law has been crucially illustrated. Law, including human rights law, applies to everyone in the country in every circumstance. Governments cannot and should not be able to pick and choose when, and to whom, that protection applies. The rule of law can act to temper knee-jerk, ill-considered and unlawful reactions to what are considered pressing issues of the day.

Shockingly, former Home Secretary Braverman on Tuesday wrote that her dissatisfaction arose from the lack of an even more draconian reaction. In her letter to the Prime Minister she complained that ‘notwithstanding clauses’ had not been included in the relevant legislation. These can permit the law to operate in disregard of human rights obligations. They allow the will of the Government to trump the settled law.

If the so-called migrant crisis is a legitimate reason for disregarding the law, then what about protests in support of Palestinians or Jews or against climate change? Where is the line to be drawn, on what basis and by who or what? The answers to these questions must be found in the rule of law itself. Thankfully, the Supreme Court yesterday agreed and in doing scored a vital victory for law over politics.