Suella Braverman appears to be suffering from a bad case of amnesia in her latest post-sacking intervention on the doomed Rwanda plan.
A little over a year ago, when she was home secretary in Liz Truss’ government, she made it perfectly clear that she thought this central aspect of government policy was incompatible with UK membership of the European Convention on Human Rights. Right or wrong, she was correct and logically consistent.
She said then “My position personally is that ultimately we do need to leave the European Convention on Human Rights…I don’t think we need to be subject to an institution born out of the post-war era which is a bit analogue in the way that it operates, which has centralised power, which is distant and which is politicised, which is pursuing an agenda which is at odds with our politics and our values. I don’t think that’s the direction that the world is going in, that’s not the direction that people called for with Brexit.”
She herself admitted that her personal view wasn’t government policy, and she was criticised for breaching cabinet collective responsibility.
Now, although freed from cabinet collective responsibility, Braverman hardly mentions the ECHR in her latest contribution to the debate. In fact, and rather bizarrely, out of government she seems to have moved closer to the official government line than where she was when she was still in the cabinet. Even more curious, not to say unfortunate, is that her article acknowledges that the ECHR can still intervene in refugee deportation cases in the UK. Braverman admits that: “Even if we won in the domestic court, the saga would simply relocate to Strasbourg where the European court would take its time deciding if it liked our laws.”
So her answer to that is to pass emergency legislation that suspends all application of any British or international law and the English common law, including the ancient doctrine of habeas corpus, simply to send a handful of people to Kigali. Yet if you want to evade international law it would be much better and simpler, as she said before, to opt out of the European and United Nations conventions, rather than trying to make being unlawful lawful, suspending our civil rights and placing the British courts under the control of government.
In the latest Braverman plan, virtually any decision by the Home Office – which in effect means by the home secretary and other ministers – could never be challenged by the courts for its legality. Passing such “emergency legislation” would set the terrible precedent of placing politicians – albeit elected and democratically accountable – above the law.
MPs could ask questions and pursue constituents’ complaints, but if a minister chose to ignore them, then they could. This is supposed to be limited to “illegal” refugees, but who is to say who is a legal or illegal refugee? And who is to stop government passing more laws than exempt politicians from the irksome business to obeying the law?
It is a monstrous idea, even by her own authoritarian standards, but it is also unworkable in the sense that the UK would still be a member of the European and UN conventions, and subject to adverse rulings and possible international sanctions as a result of its drift to a form of light dictatorship – an elected dictatorship, but one where arbitrary decisions by bureaucrats and politicians in power cannot be challenged and tested by citizens via independent courts.
The UK has only ever suspended human rights partially and temporarily in times of wars of survival. The small boats crisis is not an invasion, and the Rwanda plan can only cope with a few hundred anyway – which makes the focus on it absurdly disproportionate. Braverman wants to suspend the rule of law during peacetime and on a permanent basis. Unfortunately, Rishi Sunak seems to want to do much the same thing; he differs only on the extent to which he wants to set himself above the law. We should be clear about how close his actual policy is to Braverman’s, even though he fired her.
Of course, none of this will happen now because we are far too near to a general election the government is bound to lose, and these unconstitutional ideas – with no manifesto-based electoral mandate – can and will be challenged in the House of Lords and indeed the courts, while they are still capable of doing so. The European Court of Human Rights (which is not “the European court” of the EU, as Braverman sneakily implies) would intervene – ironically demonstrating precisely why we need it.
The danger to liberty remains, however. Imagine a world where, in four or five years’ time, Braverman is leader of the opposition and slips some slyly worded commitment into a Conservative manifesto about making decisions by ministers unchallengeable in a court of law, here or abroad.
Braverman’s “National Conservatives”, or Nat Cs, under the vagaries of our electoral system, could claim a mandate on 35 per cent of the vote for placing the judiciary (“lefty lawyers”) under the direct “democratic” control of ministers. Permanently. No more “enemies of the people”. No more judicial reviews. That’s how dangerous Braverman is, and that’s why she, and those like her, must be kept as far away as possible from power: they don’t know how to use it.
