After the Rwanda ruling, what are the options for Britain’s immigration policy?

For months, the government has struggled, and failed, to align with the provisions of the European Convention on Human Rights. Sean O’Grady examines the options for No 10

Suella Braverman tours a building site for migrant accommodation on the outskirts of Kigali in April (PA)

The recent Court of Appeal ruling on the Rwanda plan and the continuing parliamentary wrangle over the Illegal Migration Bill have highlighted once again how much the UK’s membership of the European Convention on Human Rights (ECHR) and its associated court affects policy towards refugees. For many months, the government has attempted to make its laws and policies consistent with ECHR provisions; to get the ECHR to turn a blind eye to minor British infringements and to pretend that the ECHR is compatible with the bill and the Rwanda refugee deportation scheme. All have failed.

Logically, for good or ill in the wider sense, the government could make its legal problems disappear simply by leaving the ECHR. Suella Braverman, as home secretary, has dropped heavy hints that she would like to do that, as have a range of right-wing Tory MPs. Most recently the former cabinet minister Simon Clark, seemingly an ally and outrider for both Liz Truss and Boris Johnson, has renewed his call for change: “We have to be able to control our borders. If the ECHR continues to forestall this, we have to revisit the question of our membership.” It seems set to be an issue up to and including the next general election campaign.

Could the UK actually opt out of the ECHR?

Yes. Just to be clear, though, the ECHR has nothing to do with the European Union so it’s not a Brexit issue, although leaving the ECHR has been called Brexit 2.0, or “completing” Brexit. It has been easily, and sometimes purposefully, mixed up with the Court of Justice of the European Union, or European Court, and various EU human rights initiatives.

The ECHR is a far wider grouping of European nations, from Iceland to Turkey and Ukraine – Winston Churchill and the UK were leading proponents of it in 1951. It was established in the aftermath of the Second World War to provide extra-territorial protections for people liable to be persecuted under domestic laws, and protect rights of asylum.

But in any case, the UK could give notice to quit. To leave the ECHR a state must formally notify the governing body, the Council of Europe, of its intention to withdraw. The state ceases to be a member of the Council of Europe (and the ECHR) at the end of the financial year. None have yet done so; Russia was expelled for invading Ukraine, and Belarus never joined.

What does the prime minister say?

After the Court of Appeal ruling he came out swinging: “The policy of this government is very simple, it is this country – and your government – who should decide who comes here, not criminal gangs. And I will do whatever is necessary to make that happen.”

That tough talk was taken to mean that he would contemplate leaving the ECHR. However, he has used very similar language before, with no follow through. In the (first) Conservative leadership contest last year for example he declared of the ECHR: “Over time, it’s exploited by lefty lawyers for lots of spurious reasons to keep people here. So, I think we should move to a different definition, another international standard that the Australians and others use, which is much tighter and narrower, so that will help…” When asked if that meant he would leave the ECHR Sunak said: “Yes, no option should be off the table.”

So, is it on or off the table?

Off, for now, for the observable reason that nothing has happened to suggest withdrawal is imminent, and Sunak seems reluctant to act. No doubt he’ll wait and see what the Supreme Court says about the Rwanda plan during the appeal process. If the Supreme Court rule it unlawful, then Sunak will be under great pressure to revive his suggestion of quitting the convention. Given where he is in the opinion polls, he might gamble that such a hard pledge would be worth making in a general election he would like to make about small boats and immigration. So it could be in the 2024 manifesto, in some form.

What’s holding him back?

Various reasons. One is that it would provoke yet more in-fighting in the continuing Tory civil war. Although loathed by the right, the ECHR has its supporters on the liberal wing of the party, such as Damian Green, and some of the party’s legal brains on the backbenches – Geoffrey Cox, Bob Neill and Rob Buckland for example. They find the idea of joining Belarus and Russia outside the ECHR as rather shaming.

Anything else?

Well, yes. While the ECHR isn’t part of the EU, it does feature in the EU-UK Trade and Cooperation Agreement (TCA), ie the Brexit agreement. Adherence to the ECHR (by both sides) crops up in a number of articles, and basically means that the EU could renounce the TCA or, more likely, suspend certain provisions if the UK left the ECHR. Thus, for example, Article 692 of the TCA allows for a nine-month notice of termination of the law enforcement and judicial cooperation sections of the TCA by either party; and allows for an immediate “termination” effective on the day either party leaves the ECHR or a date “the denunciation” of its principles becomes effective.

“Respect for human rights” constitutes one of five “essential elements” of the TCA and subsequent UK-EU agreements (Article 771).

What about the Belfast/Good Friday Agreement?

This is even more explicit – and hazardous. The 1998 Agreement states: “There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including… the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission; arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland.”

Peace in Ireland, in other words, is underpinned by the ECHR. A unilateral UK withdrawal, with no adequate new Good Friday Agreement text, would end power sharing in Northern Ireland, and risk a return to the Troubles.

Why can’t we have a British Bill of Human Rights?

That was the solution proposed by Dominic Raab and pursued, on and off, by successive recent Tory governments as a replacement for the 1998 Human Rights Act, which wrote the ECHR into British law. The new Bill of Rights was shelved by Truss, revived by Sunak and has now followed its “father”, Raab, into oblivion. Raab’s replacement as justice secretary, Alex Chalk, has confirmed the government has “decided not to proceed” with the bill, adding that ministers remain committed to “a human rights framework which is up-to-date and fit for purpose and works for the British people”.

The move suggests that the 1998 Act and UK membership of ECHR is secure for the time being. Sunak has better things to do than try and renegotiate Brexit and unravel the peace process in Ireland simply to save the increasingly problematic Rwanda plan.