Rishi Sunak’s government is on a collision course with members of the House of Lords, the legal profession and charities over plans to allow the UK to block the European Court of Human Rights from preventing the deportation of asylum seekers.
Sir Robert Buckland, the Conservative former justice secretary, told the Financial Times that he expected the Lords to throw out an amendment to the illegal migration bill that would allow ministers to ignore interim injunctions from judges in Strasbourg.
The prime minister has faced pressure from a group of Tory MPs who threaten to oppose the bill at its final parliamentary stages if he refuses to toughen it up. His decision to take on the court in Strasbourg is a sign of his continuing vulnerability to rebellions from the party’s rightwing.
It also reflects Sunak’s determination to do whatever he deems necessary to tackle clandestine migration after a record 45,000 people crossed the Channel to the UK in small boats last year.
Sunak has promised to “stop the boats” and the government’s ability to deport asylum seekers swiftly to “safe” third countries, notably Rwanda, forms an essential part of his strategy to deter people from crossing.
The bill will strip almost everyone arriving in the UK without prior permission of the right to claim asylum, putting the country in breach of its obligations under the United Nation convention on refugees, according to the UN refugee agency.
Buckland said the tension around “Rule 39 orders”, which Strasbourg judges used last year to prevent a flight carrying asylum seekers from leaving the UK to Rwanda from taking off, should be resolved internationally through the Council of Europe, not by national legislation. “Conflict with Strasbourg is totally unnecessary,” he said.
He said there would be a big struggle between the Lords and the House of Commons in the summer if home secretary Suella Braverman tried to push the amendment through, a process known as parliamentary “ping pong”.
Tory rebels who oppose the amendment admit the government could probably force it through parliament but would face considerable resistance.
“This move does set up a conflict between domestic and international law obligations. You can’t get away from that,” Buckland said. “I’m not voting for it.”
Separately, as a sop to Buckland and other centrist Tory MPs, Braverman is expected to accept an amendment promising to set up “safe routes” for people fleeing persecution and seeking asylum in Britain.
On the right of the Conservative party, some MPs want the government to go further and withdraw from the European Convention on Human Rights altogether. Sunak has himself hinted previously that he might be willing to consider this if Strasbourg holds back his asylum plans.
But such a move could have serious implications for UK relations with Europe, given the convention underpins both the Good Friday Agreement in Northern Ireland, and also security aspects of the post-Brexit Trade and Cooperation Agreement with the EU.
Catherine Barnard, professor of law at Cambridge university and deputy director of the think-tank UK in a Changing Europe, said the proposed amendment on deportations, was unlikely in itself to undermine the foundations of the TCA.
“It is interesting that they are nibbling round the edges rather than pulling out [of the convention] altogether. But if you are going to override [the court] that already puts us in breach of the convention,” she said.
The former chief justice of England and Wales, Lord John Thomas, said the amendment “sets an extraordinarily bad example. This is a step the government should never take because it is symbolic of the breach of the rule of law — you are saying the government can ignore a decision of a court,” he told the BBC.
