Rashmin Sagoo
Good evening, and a warm welcome to Chatham House. I’m Rashmin Sagoo, Director of the International Law Programme. And we are delighted to welcome our colleagues here in person and online to join us for this session on the recent ruling from the UK Supreme Court on the so-called Rwanda Policy. And we’ve titled the session, “Myths Versus Reality: Small Boats Migration and the European Court of Human Rights” in order to help clear some of the fog on some of the issues that have arisen from the judgment.
Now, joining me today, and we’re live on – and on the record, so that we’re all aware, the Chatham House rule is not in effect today. I have Dr Joelle Grogan, who is Head of Research at UK in a Changing Europe, welcome. Sonya Sceats, who is CEO of Freedom from Torture, and Professor Robert Spano, who is a Partner at Gibson Dunn Law Firm, and also former President of the European Court of Human Rights. Welcome to you all. And I think what we’re going to do is, we will have a Q&A session in about half an hour. We’ll hear from each of our speakers, have a panel discussion, and for our online audience, please do add any questions that you might have into the chat function, and I will do my best to keep track of them and ask our esteemed panel.
So, just very briefly, it’s been a dizzying couple of weeks on this Supreme Court ruling, which came out, I believe it’s 15th of November. Joelle, I think I’m going to start with you if I may, just to set the scene in a minute, but let’s see. We had the Supreme Court ruling, the country’s five most eminent Senior Judges unanimously found against the UK Government’s policy – Rwanda policy, ruling it was unlawful based on the evidence before the court at the time. Two days before, we had a cabinet reshuffle, which exited the then Home Secretary, brought in a new Home Secretary who’s – who was the Foreign Secretary, James Cleverly, and we also saw a new Foreign Secretary, former Prime Minister, David Cameron, so, potential for fresh thinking on this issue.
And this is all amidst a – so the – sorry, the Government’s reaction was, of course, to the ruling, was to introduce – well, announce that there may be emergency legislation. We haven’t yet seen the terms of that, and a – also a new treaty with Rwanda. And this is all, of course, in the midst of a general election looming, concern about the numbers of migrants, irregular and regular in the UK, and host communities absorbing them, their ability to, but also the humanitarian concerns of the individuals making the crossings given the backlog of cases in the UK. And of course, European nations, other E – our EU neighbours are watching very closely because they’re facing similar issues with elections and migration.
What’s your take? How do you make sense of what’s happening?
Dr Joelle Grogan
Gosh, that was an incredible synthesis of what’s been quite an incredible two years. So, just in opening remarks, I thought it would be most helpful if I contextualise the Rwanda decision and really what’s going to be next within the larger politi – well, political and geopolitical context. So, in 2016, one of the driving forces of the Brexit Referendum was migration. It was control of borders, and certainly, post-2016, we saw a decrease in EU migration. However, since 2020, we’ve seen a net increase to record levels of migration into the UK, culminating in last week’s revised figures of 745,000 people as a net long-term migration into the UK.
Now, the greatest majority of these figures are not irregular migrants. They are refugees from – well, they are relocated as a consequence of the Russian invasion of Ukraine. Also, British overseas nationals from Hong Kong, in addition to international students and a large labour force supporting health and care sectors in the UK. In 2019, about 6% of long-term migrants to the UK were asylum seekers. In 2022, this was 21%, but again, the greatest majority are recognised as Ukrainian refugees.
When we start looking at the policies that bear on migration in the context of irregular migration, often reported as illegal migration in the UK, we can look back to April 2022, and to the then Johnson Government, where then Home Secretary, Priti Patel, established the Rwanda Agreement. This was a five-year partnership agreement whereby asylum seekers would be processed – would be removed to Rwanda, where their claims would be assessed under Rwandan law. And should they be found to be refugees under Rwandan law, they would then remain in Rwanda as refugees. If we are to start highlighting myths, that is actually the first myth. Now this is processing under Rwandan law and staying in Rwanda, which is unusual in European policy terms.
The first flight was due to take off in June, 2022, but there was an interim measure that was issued by the European Court of Human Rights. An interim measure, or a Rule 39 order, is only issued in a situation in which there is an immediate risk of serious and irreparable harm. It was against a single individual, it stopped the flight. Dispelling the second myth, it no longer has legal effect because that decision was quashed in February 2023.
However, if we continue on the migration policies that have a bearing on us, we come to a new Prime Minister and a new policy, the announcement of “Stop the Boats” as one of Sunak’s key priorities in January 2023. This is also then his important Illegal Migration Act, which creates a legal duty on the Home Secretary to remove people arriving through irregular means to the UK to a third country, so long as it is safe.
In the 17 months since the interim order, since that first stopping of the flights, perhaps reflecting, again, as you’ve so well done, on the political turmoil that we’ve seen, we had three Prime Ministers and five Home Secretaries, Suella Braverman serving twice. But this culminated ultimately, in the decision on the 15th of November from the UK Supreme Court, unanimously deciding that the Rwanda Policy is unlawful. Dispelling, I think, the third myth, they decided not that the policy of removing an individual to a third country is in itself, in principle, unlawful, they did not decide that. Instead, they said, “For the purpose of this policy, Rwanda is right now, unsafe.” It is Rwanda as a country that is unsafe, not the policy of removing someone to a third country.
I’m sure we’re going to be discussing the judgment in great detail. I won’t go into it, but the government’s response was twofold. First, the promise of a treaty with Rwanda, a legally binding treaty that will resolve a lot of the issues that were decided in the Supreme Court, in addition to emergency legislation, deeming Rwanda a safe country for the purpose of removing an individual for their claims to be processed.
Final myth, and I promise I’m going to end here, there’s no such thing as emergency legislation in UK law, it’s a myth. We do have fast-tracked and – we do have a fast-tracked legislation, but it’s only when you can convince both Houses of Parliament it’s absolutely necessary. We’re now left with a situation in which it is unlawful for an individual to be removed to a third country when that country is Rwanda, but currently, it is the only country with which there is an agreement for a person to be removed. That’s the situation we’re in now.
Rashmin Sagoo
Joelle, thank you so much for really going straight into some of the myth-busting right there, and, you know, very happy to take questions as we go along. Keep thinking of them, add them to the chat for those online. Sonya, look, you are the CEO of an organisation that gives clinical support to victims of – and survivors, so, I say survivors of torture. And that hasn’t always come across in some of the reporting, the human side of the cases that we’re considering. So, please, your initial reflections on the case.
Sonya Sceats
Thank you, Rashmin, and thank you all for being here tonight and for those joining online. So, yes, I’m the CEO of Freedom from Torture, which is one of the largest torture rehabilitation centres in the world. And my job tonight, among other things, is to, kind of, really, sort of, ground us in the reality, missed reality, of the people whose lives are in the balance when we are talking about a cash for human scheme, as is the case with the Rwanda scheme from our point of view. So, we provide therapeutic support, and we do forensic documentation of torture injuries to support survivors in the asylum process. So, the reports are used by decision makers.
And I can tell you that this scheme has inspired existential dread amongst people who have suffered the very worst cruelty that you can imagine. And I’m talking about people here who are not even at risk from the scheme because they arrived in Britain well before the date at which people became at risk of it. But this is the, kind of, the level of trauma that this has set off, you know, in people who have suffered so much and who have come to Britain seeking safety.
So, we as an organisation have been very concerned about this scheme right from the start. We actually commissioned the original legal opinion from Raza Husain KC, when the Nationality and Borders Act was going through Parliament. And that – he was at Freedom from Torture today talking about how foundational that had been in giving him and his team a head start on thinking about many of the complicated legal issues that he then needed to mobilise and translate into submissions at a breakneck speed on the minute that removal directions were set.
We were then a witness in the state in the case. We intervened as a third party in the Court of Appeal on some of the procedural fairness points. And we’ve been very active generally in – beyond the courtroom, mobilising tens of thousands of people in this country to stand against a scheme in which humans are being traded for cash with a country like Rwanda. And we – through that work, we’re able to convince the airlines to back out of a scheme. So, this is another thing, you know, notwithstanding what happened in the courts, the government still needs to find an airline, and they haven’t got one because we stopped them through our “Stop the Flights” campaign.
And I just wanted to, sort of, say again, as a, sort of, preface point, that we at Freedom from Torture have an objection to this scheme in principle, not just because the Government selected a torturing authoritarian state to secure this deal with. So, I just want to, sort of, make that clear because, of course, this becomes politically very important when you see the reports over the weekend that the Government has found another five or so states that they are seeking to conclude similar agreements with. So, you know, our position is one of principles.
So, three kick-off observations about the judgment. First of all, the force of the affirmation from our Supreme Court unanimously of the importance of the principle of non-refoulement, which in essence, is the idea that it is a violation of international law for a government to return somebody to a country where they face a real risk of persecution, including torture. The court went above and beyond what almost anybody from a, kind of, a claimant side could have imagined by trying to insure against the arguments that Britain would come out of the European Convention on Human Rights, and be done with this and free. The court said, “This is a – this is such a fundamental principle. It’s enshrined not only in the Refugee Convention, but in the Convention Against Torture, in the International Covenant on Civil and Political Rights.” And they went even further to posit that it may even be recognised as a customary international law principle binding on the United Kingdom regardless of our treaty commitment. So, this was the court just pushing the boat out on that principle.
Secondly, we’ve heard a lot of talk from the minute that judgment was handed down about emergency legislation, a treaty, etc., but these – we need a really healthy degree of scepticism about all of that political noise because these mechanisms just cannot get around the findings of fact around structural problems with the Rwandan system that are – that can’t be magicked away through any kind of deal cut with the Rwandan Government, or through British legislation.
And then finally, this judgment was the most extraordinary victory for the rule of law, because one of the – in this country, because one of the arguments that had been in play throughout the proceedings, played by the Government, was that this is a – an area where the judiciary should be deferring to the judgment of the executive on the safety of Rwanda. And the Supreme Court roundly said no to that, which has importance way beyond this case and the people that my organisation represents. It was a real defence of the separation of powers and a, sort of, a pushback on efforts by the Executive to ask the courts to deal themselves out as an essential check on abuse by executive power.
Rashmin Sagoo
Thanks so much, Sonya, so clear, and Robert, I’m going to turn to you. We might pick up on a couple of Sonya’s points in the discussion later, and I’m sure you’ll have comments on them, as well. But from your perspective, whether as former President of the European Court of Human Rights in Strasbourg, want to say one myth to bust. We’re not talking about the European Union here, which the UK, of course, exited. We’re talking here about European Court of Human Rights in Strasbourg, part of the Council of Europe, an entirely separate international organisation and institution – multilateral institution. But Robert, your reflections on the ruling, please.
Professor Robert Spano
Well, I think the first reflection is there is absolutely nothing surprising in the ruling. The ruling for me is a straightforward application of the law. If I would’ve had to guess in advance what would be the finding of the UK Supreme – I was pleasantly surprised by the unanimity of the members. But the sequence of reasoning is very much in line with the correct, in my view, understanding of the state of current international law and also, the state of UK law, stricto sensu.
I think the judgment then encapsulates, Sonya, has already mentioned some of the salient elements. I’d like everyone in the room to read paragraph 26 of the judgment. That is a – it’s a beautiful paragraph, which I think even though the UK Supreme Court starts off by saying, “We don’t get – we don’t engage in politics,” they make that clear, there is a message in paragraph 26. The first message is, “Stop talking only about the ECHR. This is – the ECHR is not a problem here. So, if you’re going to try to find a scapegoat in the ECHR, that’s not going to help you because this is a far bigger principle we’re dealing with.” The second point made in paragraph 26 is exactly the point Sonya made. We are talking about one of the most fundamental principles of human existence. We simply do not let people which are persecuted, at risk of ill treatment, we do not forsake them due to national politics. It’s as simple as that. It’s a red line rule, and the UK Supreme Court makes that absolutely clear.
And the third point, which I ask all the Politicians to read, is the UK Supreme Court saying absolutely clearly that this principle of international law is a principle which the United Kingdom has internationally committed in line with its reputation for upholding the international rule of law. That’s the bottom line in the judgment, and I think these three principles are what then permeate the more technical issues we can talk about, strictness of review, the assessment of diplomatic assurances. That part of the judgment is very, very important. We can talk about that, as well.
And we can also talk about – which I think for the Government Lawyers having to read the judgment, it’s the final sentence of paragraph 105, which talks about the potential of changes to the Rwandan system in the future, the potential, but the current system is not in any shape or form. There is no viable solution at present under international law for the issue which the United Kingdom Government – current government wants to “solve” in a treaty with Rwanda. That is not possible, in my view, under current state of international law.
Rashmin Sagoo
Robert, thank you so much. So, we’ve got ten/15 minutes or so just to, kind of, unpack some of these points. I think, you know, you’ve spoken so eloquently, Robert, I think I’ll start with you, and Sonya also raised this point about the sources of international law. And we don’t want to get too technical here, but there is a really important point in the judgment that’s overlooked, this point about customary international law. That even if – in – there’ve been suggestions recently as reactions to the judgments, that the UK ought to withdraw from certain treaties, whether it’s the European Convention of Human Rights, or the Refugee Convention, other treaties. And yet, the judgment, and I think probably the paragraph that you’re mentioning, Robert, as well, it was very clear that the principle of non-refoulement is in a span of treaties that Sonya identified in domestic law, but also, this principle was not often well understood of customary international law. Do either of you want to unpack what that means in practice, in very brief – very briefly?
Professor Robert Spano
I answer very briefly. I think that there is a big [inaudible – 22:56] debate about the normative status of the principle of non-refoulement. It is – it has its origins in treaty law, but, of course, due to consistent state practice over many decades – and I think the UK Supreme Court is among national courts that have given some sustenance to the idea that it has reached a status of – a customary status. We don’t have a judgment, for example, of the International Court of Justice that explicitly states that, because we have a very strong treaty-based basis for the principle. So, I wouldn’t want to opine on that, but ultimately, I think there is a very strong argument applying The Vienna Convention on the Law of Treaties interpretive framework of subsequent state practice and so forth, to make the determination, make the normative leap that this has now attained the level of a customary law.
Rashmin Sagoo
And, you know, we can take more questions on this later, but just to make the point very clearly that the significance of this point, and the court was very clear, wasn’t it, that the judgment was not based – that the reasoning was not based on this point of customary international law because it wasn’t put towards the court – to the court? However, the significance is that even if a state withdraws from a treaty, it’s still bound by the rule of customary international law through state practice.
Professor Robert Spano
Absolutely, I think – true. Can I just say, the essence of that, which is absolutely true, is as you say, but is it – is – are we actually talking about the United Kingdom withdrawing from the Refugee Convention, the International Covenant on Civil and Political Rights, the Torture Convention, and the European Convention on Human Rights, in 2023? Is that what we’re talking about? So, I mean, let’s be real here about what actually is the underlying issue.
Rashmin Sagoo
So, unpack this a little bit for me and for all of us, and Sonya, Joelle, please come in also, but – because it – you know, people are confused about it and want to understand. So, if – so, a) would it be a – my question is, would it be a proportionate response to the ruling? B) would it solve the “small boats” crisis if we actually did withdraw? Just hypothetically, you know, merits aside, and see what would be the wider international law and relations implications? Who wants to take those really simple questions, or start?
Dr Joelle Grogan
I’m looking at my august panel. Where to begin? There’s a lot of debates on human rights, absolutely. If you exist in a human rights space, it’s constantly being debated, but let’s, again, just focus on the myths. If you want to seriously consider withdrawing from the ECHR, I can absolutely tell you about the immediate legal, international, political, diplomatic impacts. And I can tell you every single one of them will not solve “small boats.” It won’t solve migration. Very simply, the Court said, “Withdraw from the ECHR, it will not remove the principle that you should not, and you cannot return someone to a country whereby they face a risk to their life. That exists beyond the ECHR, it exists in UK law, it exists in international law.”
But very briefly, if we talk about withdrawal from the ECHR, for immediate consequences. First, it will violate the Good Friday Agreement. That will undermine the US relationship under a Biden administration. It will undermine the EU relationship, it will undermine the Northern Ireland situation. It will really, really damage international relations.
Rashmin Sagoo
And we know that the White House just – was it this week…
Dr Joelle Grogan
Yes, exactly.
Rashmin Sagoo
…also expressed concern about the Good Friday Agreement and how this would unravel peace in Northern Ireland.
Dr Joelle Grogan
Exactly, Biden – the Biden administration has been very forthright in the protection of the Good Friday Agreement.
Second, the EU has already stated that it would suspend – it would terminate part three of the Trade and Co-operation Agreement. This is judicial co-operation on criminal matters. Very simply, the EU will say, “We will not extradite EU citizens, non-EU citizens, or even British citizens from EU member states to UK courts because they cannot guarantee rights. You cannot guarantee human rights without committing to the ECHR as you have in a TCA.”
Even if we imagine that the EU doesn’t take that strong a position, that even where they’ve stated that they have, that they don’t do that, I can tell you right now that every Lawyer throughout Europe, if not the world, will have the same argument in defence of their client against extradition proceedings, saying, “The UK does not protect human rights. It cannot guarantee the right to fair trial. Why should we recognise a request for a surrender?”
The third immediate consequence for withdrawal from the ECHR is damage to the UK’s international reputation for its reputation in terms of obligations and holding itself to its international obligations.
Rashmin Sagoo
On that, I’d love your thoughts – I’d love Robert’s thoughts, as well, from a – like, from the Courts – from a – as a former Judge of the European – President of the European Court of Human Rights, as well. Because the implications on a multi – from a multilateral perspective in terms of whether it’s geo – you know, geopolitical co-operation, whether it’s reforming perceived deficiencies in a system, whether it’s working on big issues collectively on climate change or artificial intelligence, any of these big, kind of, trans border matters. But how would you – how – and then Joelle’s point about UK’s soft power, as well, where would – how would you perceive that to be affected?
Professor Robert Spano
I think what I would like to do because I don’t want us to sound overly one-sided on this…
Rashmin Sagoo
Yeah.
Professor Robert Spano
…and not identify the issue, because the issue which is called the, you know, the “small boats crisis” or whatever you want to call it, migration, it is a truly globally difficult issue. And it is very understandable that the United Kingdom, like my own state of Iceland is, is having the same debate. How do we deal with a transformative change to our social dynamic with the kinds of crises we’re dealing with, where the world – the world’s divide is increasing for many reasons?
So, I think the issue is there, and it is perfectly understandable that governments will want to try to find solutions. There is no question about that. The solution, in my view, can’t, by definition, be, “We will control our borders,” because everyone is in the same position. So, the only solution has to be one which is a multilateral solution. I have taken the same position when it comes to the climate change crisis where people are waiting for courts to decide how to solve that issue. Courts will not solve the issue. It’s a different dynamic.
Rashmin Sagoo
Right.
Professor Robert Spano
They will only be solved by multilateral co-operation, and there are difficult issues we need to decide when it comes to – but everybody needs to be in the room to take a long-term view on this, and I think it is not helpful, it is not helpful for any state to take a position. We’re going to find ad hoc solutions, we’re going to try to push the limits and even break the limits of red line moral principles because we want to protect our sovereignty. That’s not going to solve the issue.
Sonya Sceats
And just to…
Rashmin Sagoo
Sorry, Sonya, did you – yeah, go ahead.
Sonya Sceats
Yeah, I just – on this, sort of, point about – that Robert makes around the importance of a multilateral lens when it comes to thinking about the challenges in the world, and thinking about the situation of refugees in particular, and turning the clock back and thinking about the history, what drove the creation of the Refugee Convention in the first place? Among other things, it was a wakeup call heard by the international community following the Holocaust, where during that period in time, there was a principle of law that people fleeing any horror required pre-authorisation by a state in order to be able to arrive and claim protection. And that meant that there were many hundreds of thousands of people, at least, who lost their lives because state after state after state was adopting the approach that Britain is now advocating for. I mean, this is the international vandalism at the heart of the UK’s position at the moment, seeking to wind the clock back to the era prior to the Refugee Convention.
And so, you know, when the logic of that bore out in the way that it did, in the aftermath, states came together to agree a collective problem-solving approach that includes the Refugee Convention. And just as it was the case then, so today, when thinking about displacement, the problems of how you ensure protection for people fleeing torture and persecution, we also need a multilateral approach, including partnership working with our neighbours over in Europe to create pathways to safety for people that mean that they’re not, as our clients are, putting their lives at risk in boats because they’ve got no other option.
And so, that point about multilateral engagement is one that is so desperately important when we are thinking about the challenges here.
Rashmin Sagoo
Thanks, Sonya, and I think maybe we can pick it up later, or now if you wish, but there’s this question about that multilateral engagement. Robert picked up the point that it’s fair play to ask the question, at least, as to whether there might be a need for tweaks or reform, or whether we actually say, “This is the system that we’ve got.” Actually, it was created at a time when the world was able to come together. We’re at a point in the world now where it’s extremely difficult to agree new treaties, with a hun – is it 149 countries – member states, sorry, states party to the Refugee Convention, if I remember correctly? Could we get that kind of consensus now? If we can’t, we have to work within the framework of the – of what we have, and is the answer really the law or is it about the practical implementation of it – around it?
And then the question that arises that we might want to pick up in Q&A, as well, is going back to the point about credible assurances that a couple of you have picked up on. And that’s about going back to the ruling, the factual situation in the ground – on the ground in Rwanda at present. How is that going to be changed by the proposals that – by the emergency laws that are being suggested by the Government at the moment? How can that situation be rectified anytime soon through a new treaty? Joelle, you look like you wanted to say something on that, but would – did you want to pick up any of those points?
Dr Joelle Grogan
I mean, the one recognition that we can have is this is an incredibly difficult situation, and I don’t think any of us can downplay it. I recognise we’re all Lawyers up here and we’ve self-interested in speaking as long as we can about how important law is, but the one point that I would echo and emphasise is, it is about practice, it is about reality, this is about facts. The judgment recognised that right now Rwanda is not safe, but it could be, it absolutely could be. They recognise that Rwanda made assurances in good faith, but on observation, on trust and reliance, on UN evidence, it’s just not safe right now.
One of the key challenges to the treaty, when it comes, is not only trying to incorporate those expectations that the Supreme Court has, again, reflecting on national expectations of what is fair trial, what is fair process, what is refugee protection, but within the Rwandan system, whether – is not British control, and we’re seeing that in some of the media reports. It’s this sense of concern of Rwandan authorities that they’ll have their own sovereignty taken away from them, that they’ll have observers or – oh, well, control taken away. I think one of the tensions that we constantly have in this debate is recognising what is controllable and what is uncontrollable. It’s a facetious point, but it’s real that often in the context of “small boats,” the weather can be more determinative of how many arrivals there are in many of our national policies.
Rashmin Sagoo
Thank you so much. Any questions online or in the room? Please, if you could – there’ll be a microphone that will magically appear in a moment. If you could, please state your name and affiliation if possible?
Sir David Hannay
Thank you, David Hannay, House of Lords. I’m not a Lawyer, but I wonder if you could – the panel could answer two questions. One is to situate your views more firmly in the context of the Refugee Convention than in the context of the European Court of Human Rights, which was what the ruling by the Supreme Court did, in fact, slightly to my surprise, since a Government Minister told me about 19 times that I was quite wrong when I said that the Illegal Migration Act was going to contravene our obligations under the Refugee Convention. So, that’s one question.
The second question is this, from what was said, though we don’t know this, about the treaty that was now to be negotiated with Rwanda, and which we’re all waiting to see, this would, in fact, involve Rwanda agreeing that it would not extradite any person who came from the UK under the scheme, except to the UK. But unfortunately, that is illegal under the Illegal Migration Act. What is the – because the Illegal Migration Act says that “We may not – the Home Secretary may not admit someone who has arrived here illegally,” and that presumably goes for somebody who’s been to Rwanda on a short holiday trip and then come back again when found not acceptable under Rwandan law for asylum. So, what is the solution to that? Presumably, the Illegal Migration Act has to repeal, too.
Rashmin Sagoo
Thank you very much. Two great questions there and – sure.
Sonya Sceats
Quickly tackle the second. We don’t know what is in the treaty, but I’ve also seen that conjecture. It’s Article 30, if any Lawyers in the room want to be specific about the IMA, that expressly forbids a return of those removed to the third country. It does create an impossible situation. It also, again, looking away from the law to just the sheer practicalities to the policies, creates a false incentive. It incentivise those removed to Rwanda to fail the Rwandan claim so that they may be returned to the UK. But again, that creates the question of, are they then processed under UK law or what other solutions are available? Again, I don’t really want to suggest further conjecture because we have to see what the treaty will say.
Rashmin Sagoo
Joelle, if you want to take the ECHR Refugee Convention.
Dr Joelle Grogan
Should I take…?
Rashmin Sagoo
Yeah.
Dr Joelle Grogan
One liner, not on the ECH, but just the point about the Illegal Migration Act. We, sort of, haven’t discussed that tonight, but I’m really glad that you’ve brought it up and posed a question about its compatibility with our international treaty obligations. Because for those who don’t know, the Act essentially eviscerates the right to asylum, and just to say that there are very, very serious concerns about the compliance of that legislation with our duties. It is a really serious – it’s probably the most draconian piece of anti-refugee legislation in the entire world.
Rashmin Sagoo
Any further questions? And I might take a couple together. Yes, on the left there, please, Olivia.
Olivia O’Sullivan
Thank you. Hi everyone, my name’s Olivia O’Sullivan. I’m the Director of our UK in the World Programme here at Chatham House, and thank you very much for doing this panel. I have a question for all of the panel, really, about unsurprisingly, the UK’s role in the world. So, you touched a bit on the way the Illegal Migration bill, the Rwanda plan, the way it, kind of, undermines the UK’s multilateral role. I’m curious if any of you want to, kind of, expand on those comments.
So, we – there are countries in the world that host far, far more refugees than the UK. Bangladesh hosting around a million Rohingya refugees, Turkey still hosting millions of Syrian refugees. And often the UK in its diplomatic role overseas is seeking to, and in treating those countries to abide by the principle of non-refoulement, to not return those refugees or to continue to host them, and I just – you know, along with other countries in the world and along with UN institutions. I just wonder if you have any reflections on – you know, people often talk about this point of undermining international law and undermining the UK’s, sort of, broader international role, but if you can, sort of, comment further on how that works and how that comes out in conversations with these countries. If you have any thoughts on that, I’d really value those reflections. Thank you.
Rashmin Sagoo
Thank you, and I’m going to take one for online because it’s related, and the question is “What message does it give to the developing world in terms of support for the rule of law, multilateralism, the UN system, when a country like the UK has Senior Ministers demeaning the UN Refugee Convention?”
Sonya Sceats
I would love an opportunity to, sort of – to just say the obvious, which is that the message that this sends to the world is that Britain doesn’t believe in the rules-based international system that our Prime Minister and our FCDO espouse. I mean, it’s as serious as that, and, you know, we know that there is country after country lining up, ready to follow suit if Britain can get this scheme off the ground. And then what we have is an unravelling of the multilateral treaty-based – rules-based system for dealing with global challenges.
It’s – you know, this is a real Rubicon moment for the country, and that’s even before you get to the moral issues that – Robert, thank you for surfacing earlier around the principles that are enshrined in these treaties around, you know, human dignity, respect for human life, you know, the absolute prohibition, you know, of torture. These are ideas that are safeguarded by these treaties that, you know, we’re, in this day and age, in Britain of all places, a permanent member of the Security Council, you know, looking to tear apart. So, the costs just couldn’t be higher, and I think this isn’t who we are as a country.
Rashmin Sagoo
And I wonder, Robert, would you agree or is there a wider lens here that – you mention, you know, you’re working on climate issues, other issues that, you know, the UK is seeking to be a world player in, being very active. Is there a read across from – you know, do people outside the UK – you know, you worked with – when you were working with colleagues across Europe, for example, in Strasbourg, what was the perception of the UK? How is – how would these sorts of situations be impacted?
Professor Robert Spano
I mean, I want to be very careful here because if you get me started on this question, it’s – you know, if you look at when I started at the Court in 2013, this was just after the UK Presidency of the Council of Europe in 2012, which was a seminal moment in many ways. And I actually think even though it was a moment of criticism of the convention system, it was a healthy debate, and it was a debate which was constructive, and it had constructive consequences for the convention system.
The UK has been, for the last – since the Second World War, has been one of the leading lights in the world in the international legal order. The UK has had – when it comes to statesmen, Academics, Judges, Politicians, have had an immense positive impact on the evolution of the global legal order. In the last ten years, unfortunately – you know, after Brexit, which I’m not going to talk about, that’s a different decision, but the way in which the narrative and the rhetoric has evolved in this country has really had a dramatic negative impact about the perceptions of the position of the United Kingdom in the international context.
And the reason that is so depressing is because this country has everything it needs to be a leader in pushing things forward, and because it’s such a leading light, there are so many, as was just mentioned, there are so many countries that do not have that experience and are waiting for any possible tool to be able to distance themselves from this legal order. Now, if this country, the Rubicon moment, takes that plunge, it’s really going to be the unravelling of the system that we hold so dear. It’s as simple as that in my view, and that’s why this debate is really existential in many ways, because this is one of the fundamental places on earth where democracy and the rule of law have been the leading constitutional pillars of your society.
So, therefore, you know, it’s not like, you know, we were talking about this in Iceland or in many other coun – the United Kingdom has a special role. So that – to your question, this is more important here than in many other places. There are also linguistic issues. I mean, you speak a language which most of the world understands. You can express the way – you can express principles in a manner which many other countries do not have access to in other parts of the world. So, the responsibility is great, and the last ten years have not been the best moment for the United Kingdom’s position in the international legal order. I’m afraid that’s the result.
Rashmin Sagoo
And it does also seem to be this need to marry domestic and foreign policy because there’s often this, sort of, sense of pulling apart, but the – on this issue or others. And we also hear the UK Government announce, say in the International Development White Paper, or in the Integrated Review, you know, repeated reassertions that it is committed to the rule of law, that it is committed to fundamental human rights. So, maybe that is something to, kind of, hold onto, but it’s – perhaps from what you’re saying, there’s so much potential damage from specific instances like on this matter that can have a ripple effect. But other questions – thank you. I think we’re going to take two or three.
Professor Robert Spano
Is she…?
Rashmin Sagoo
If we could…
Professor Robert Spano
The lady over here…
Rashmin Sagoo
Oh, sorry, I missed you out.
Professor Robert Spano
…wanted – has her hand up.
Rashmin Sagoo
Thank you, on the right.
Terri Paddock
Thank you. Hi, my name is Terri Paddock, I’m a Chatham House member. I just wanted to say this is an excellent panel and thank you all for speaking so eloquently and clearly for the non-Lawyers in the room, thank you. Very, very simple question for Sonya. Sonya, I take notes, you said that you had four immediate consequences of the UK withdrawal from the ECHR, I don’t think we heard the fourth one.
Rashmin Sagoo
Oh, for, Joelle?
Terri Paddock
Oh, I’m sorry, Joelle, sorry, if you…
Rashmin Sagoo
Should we just take a couple more first of all? Lady in the front row over here, please.
Professor Robert Spano
There was one on the back row, as well.
Melanie Mathis
Oh, my name is Melanie Mathis, Chatham House member. I just want to ask a couple of questions. One is really, kind of, simple, I guess, it’s a matter of law. When I heard the opinion, I think it was December 13th or 15th at the Supreme Court, I thought, “Okay, well, that’s it, the situation is solved. That’s – no, no, no, that’s it.” The next day, I think Sunak was saying, “No, we’re not going to abide by this.” I mean, is – does Parliament or the Supreme Court have – can the Parliament contravene the Supreme Court judgment? I mean, should it be called less than the Supreme Court, should it be called Supreme?
And the second question is about solving this problem and it can’t be unilateral. It should be – this problem of “small boats” has to be done in conjunction with another – other countries. I’m wondering why France and the UK have not solved this. What – are they working in good faith to solve this? What’s in the future? Are you hopeful that they will get together and do something soon?
Rashmin Sagoo
Thank you so much, and perhaps one more question, and we’ll go more to the – just to the left a few. So, to the left. Yeah, that side is fine. Sorry, there’s somebody waiting there. Oh, I’m sorry.
Shakiba
It’s okay.
Rashmin Sagoo
We’ll go to you, I know you were waiting. Well, you go there first, you next.
Shakiba
Thank you. My name is Shakiba, I work at Charity Sport and Refugees Integration in the UK, and my question is, how are we working with organisations on the ground to gather thoughts on refugee reactions? I also come from a refugee background myself. My family came to the UK 24 years ago from Afghanistan. As we get refugees coming to us a lot as a result of the refugee – the Rwanda policy, who have gone into hiding, so they’re not deported. So, working in the charity sector, I’m naturally just drawn on what we’re doing and the reactions we’re gathering from refugees. Thank you.
Rashmin Sagoo
Thank you for sharing your question and insights and experience. I think what we’ll do is, Joelle, do you – I think I really interrupted your fourth point. So, let’s go to you first. Sonya, I wonder you might want to take that last question, and Robert, or Joelle, perhaps you could take the lady at the front’s question about, you know, we thought that the Supreme Court ruling was the end of this.
Professor Robert Spano
Joelle will take this.
Rashmin Sagoo
Okay, Joelle can take that one, but then it, kind of – yeah, we could take the two together, if that’s okay, but it’s, kind of, rumbled on. So, what’s going on here?
Dr Joelle Grogan
Absolutely, I’m no longer a Law Lecturer, but this is really exciting for me to talk about Parliamentary sovereignty and constitutional law. The fourth is actually already been eloquently answered, it’s precedent. In 2016, when Russia instructed its constitutional court to – in some cases ignore rulings of the European Court of Human Rights, they explicitly referenced the grumblings of the UK with regard to the prisoner voting. The UK is on any metric before the European Court of Human Rights, by virtue of how it has brought human rights into its domestic constitutional law, simply one of the best. It has one of the best reputations on any statistic. Afterwards, I’m very happy to answer what I mean by that.
Let’s talk about what it means. As a matter of constitutional law in the UK, an Act of Parliament cannot be struck down, it cannot be overruled. You cannot appeal to the European Court of Human Rights or any court in the world. You cannot strike down an Act of Parliament. So, if an Act of Parliament is passed, which says “Rwanda is safe for the purpose of the law,” the Supreme Court, at most, can issue a declaration of incompatibility, essentially, a flag to Parliament that this violates rights. That also, and again, as a matter of international law, does not remove international obligations. Domestic law cannot remove your international obligations. We will still see decisions of the Courts of Human Rights likely saying “This is a violation.” But as a matter of domestic law, it will be law.
Will just be terribly embarrassing because we have a phenomenal human rights record, and we really – I’m not saying, like, rah-rah here, but it is absolutely a fantastic record, and the moment that any other country in the world can say, “Well, if the UK can ignore these obligations, if the UK can ignore its treaties, if the UK can ignore the international system,” as a precedent, that’s deeply concerning from an international perspective, not just in terms of human rights. I’m actually more interested in trade and investment and stability and business. That’s really where I look to into the future. Those points.
Rashmin Sagoo
Thank you, Joelle. Sonya?
Sonya Sceats
So, yeah, thank you for your question about how the judgment has landed with people who will be impacted by it. Initially, enormous relief, but then because of the Government’s mobilisation of its media machine to sow doubt in the minds of people like yourself and many others, that, in fact, this wasn’t really over, despite what was an utterly devastating judgment for the Government’s policy position, that, sort of, sense of relief quickly triggered in survivors of torture who we work with, the return of the threat defences.
So, suddenly, you know, we are working with survivors of torture who do fear that they will be placed on planes to an uncertain fate in a torturing state, whether that’s Rwanda or somewhere else. So, our Therapists have got a lot of work to do to be helping to reassure people that there is a difference between a, kind of, a political spin campaign that is designed to keep segments of the electorate thinking that this scheme is still in play, and to help them understand that in fact, you know, the chances of planes leaving with them on them is infinitesimal at this point.
Rashmin Sagoo
Thanks, Sonya. Back in the room, any more questions? I know there was one – there were a few here. Yes, you first, please, go ahead.
Jun Pang
Yes, thank you so much. My name is Jun Pang, and I work at the human rights organisation, Liberty. I have two questions, if that’s okay. The first is, I wanted to ask the panel what you make of the European Court’s recent announcement of procedural changes to interim measures, and essentially, kind of, what the significance of this is and what it says about the UK’s current influence on the Court? And of course, in those changes, one of them was one that was, you know, advocated by the former Home Secretary about naming the Judge that makes the interim measure.
And then the second one, which actually goes to something that was said in the introduction about the new Home Secretary, who has obviously a very different approach to the scheme – the Rwanda scheme, but also the ECHR. So, I was just interested in your reflections on that.
Rashmin Sagoo
Thank you. I mean, they’re both quite deep questions, and I wonder, Robert, if I may – ‘cause interim measures is a whole separate question, and of course, these are exceptional temporary measures, there are – there were – there are none at the moment. They were lifted quite some time ago in this matter. There was a consultation, as I understand it, live on potential reform, but also important to mention, I imagine that this is not just about – there’s a process, isn’t there? It’s not just about one country saying “We need to change things.” It’s a multilateral institution and therefore, there’s processes and procedures that need to be followed if reforms take place, even if individual states have strong views about a particular issue.
Professor Robert Spano
Yes. So, the question is for those that are not familiar with the system, so, the question is – up until very recently, the European Court of Human Rights has indicated what is termed interim measures, which are – 90% of cases are indeed in deportation or expulsion cases, which indicate to the Government you should stop the expulsion or the deportation whilst the case is being examined by the Court. It is meant to preserve the right to individual petition. I mean, that’s the underlying logic, and it’s considered to be a binding rule. So, in other words, states are bound by these indicative measures of the Court.
Historically, the situation has been that most of these measures are taken by individual Judges, so a lone Judge, because the court receives many of these, two to 3,000 a year. So, there is what we call a Duty Judge, which is usually one of the Vice Presidents of the five sections nominated by the President. In the Rwanda case, indeed, the decision taken to request the Government to stop the deportation of the individuals in question was taken by one Judge. And the system has been that the name of the Judge is not indicated in the individual measures, but there is an asterisk on the website of the three Judges that are in question. There are only possibly three Judges at that point.
Now, this has been internally debated for quite a long time. It really was debated far earlier than this criticism of the UK, and there has been within the Court a process that has been ongoing for many years. Of course, the Court doesn’t operate in a vacuum. Criticism level that the Court, whether it’s the United Kingdom or from other member states, are taken into account in that process. So, I wouldn’t read anything more into that, that simply the Court has for a long time been reflecting on this. I think the Rwanda case was one element that they – that was taken into account and now there have been some changes to the system, which I – in my view now, being an outsider and not anymore a Judge of the Court, find to be positive changes.
Rashmin Sagoo
Thanks Robert, and just to be clear, ‘cause this has come up quite a lot, this issue, in the – in past months, but the reason for the anonymity rule to date has been that Judges actually under great pressure. And the Duty Judge who has to decide these very challenging, difficult time-sensitive cases – because it is about, for example, can somebody be put on a plane and sent off to a country where their life or liberty is at risk – and can – the Judge themselves can receive death threats as I understand it, or this evidence for…
Professor Robert Spano
I think it is important for United Kingdom Lawyers in particular that are reflecting on the system and are in a position to critic – want to be in a position to meaningfully criticise the system, as they should, to realise that the system is one of 46 member states. It’s not just the United Kingdom. So, these are traditions within the Court that have to take account of very different legal traditions. And some of these decisions – I was in a – some of the more difficult decisions are taken by the President. I, for example, one of my last decisions as President was to refuse an indicative measure in a case on the withdrawal of life-saving treatment for a child in the United Kingdom. As, you know, under the Children’s Act, these are relatively – they’re not on frequent cases, and then it came to the Court and I had to take that kind of decision, and immediately, I was vilified by Christian organisations. I received emails, you know, terrible things, that I was a child killer and so forth.
So, this is not an easy task. Therefore, historically, yes, the situation has been that the Duty Judge has not been – his or her name has not been named, but of course, there is a requirement, and I accept that requirement, that a Judge taking a decision, that needs to be a Judge that is named. That this is a situation of power, and so, now I understand the Court has taken that position that those that will decide these things, they will be named. But I’m just giving you the context of why this was – it was not, like, you know, secret Judges taking decisions. You know, it’s not the way this works. There is a whole context, a historical context and tradition, which this was based on.
Rashmin Sagoo
Thank you. I’m afraid we’ve got time for one more question. If – a very short and concise clear question, if you don’t mind.
Member
It’s a very short question. If I’m allowed to ask a question of the audience rather than the panel.
Rashmin Sagoo
Yes.
Member
I would be interested to know whether anybody here tonight wholeheartedly approves of the way the Government is handling the migration issue.
Rashmin Sagoo
Very interesting, and what I’ll ask our panel to comment on just as we close up, because we’ve only got a couple more minutes, is just your final reflections on – in – from this myth-busting session. We’ve spoken about how there’s still great concern about where this case goes now, and now, what’s the option for the UK and what are the positive solutions, if any, for controlling irregular migration, whether in the UK or elsewhere? And do you have – what would – what – do you have any thoughts on this, whether it’s legal or on the policy side? Maybe one minute each.
Dr Joelle Grogan
Happy to kick off just on a minute. For what options, legal options, policy options are available to the UK? The Illegal Migration Act lists 56 other countries that are deemed to be safe, although eight are for men only. I have no doubt that the Government is trying to seek an agreement with one of those countries, a safe country. However, a majority of them are facing exactly the same challenge. The UK has been talking about redoing its asylum policy since Brexit. They’ve wanted to have bilateral agreements with France, with other EU countries, but every country is facing exactly the same issue. And as we’re seeing in Germany and Italy, who are citing the UK, who are citing Rwanda policy as potentially an option, they’re all trying to close their borders, to control the uncontrollable right now.
So, I can actually circle back, and I’m sure this will probably be a point echoed, if we really want to tackle irregular migration, we have to be honest about the real causes of it, and the fact that it requires – it demands a multinational solution, a multinational efforts. That’s the only way that you can effectively respond to irregular migration.
Rashmin Sagoo
Thank you, Joelle. Sonya?
Sonya Sceats
Okay, first of all, that the term crisis in this context really applies to the person who is on that boat fleeing torture. The numbers of people we are talking about here are minuscule from a global perspective, less than 1% of the world’s refugees housed here in Britain, and so often that perspective is lost when we are talking about these things.
In terms of solutions, as we’ve discussed tonight, it’s abundantly clear that Britain needs to be working with European partners in particular to be creating safe routes, involving an element of choice for people who are often, in the case of the small minority, coming to Britain, coming here because they’ve got family links or other connections here. We need to restore the right to asylum in this country, sort out the backlog and then, inject compassion back into the system ‘cause it’s been ripped out through successive pieces of draconian legislation and policy overhauls.
And then finally, the gentleman, your question was for me, the most telling moment of the night because if you are only, kind of, thinking about these things through the lens of what we’re seeing in the media, you could be mistaken, you know, for thinking we – so, it would be natural to think that the Government enjoys popular support for the anti-refugee approach that it is taking, and it is absolutely not the case. Poll after poll after poll has shown that an overwhelming majority of people in this country want Britain to remain a place of safety for refugees, and I hope that’s one of the lasting points that, you know, leaving this evening, you take with you. That you’re not alone in this room.
Rashmin Sagoo
Thanks Sonya, and Robert?
Professor Robert Spano
I’m not even sure I want to say anything after that because I think that is a beautiful way of ending it. Maybe just a general point, our world is changing. We are unfortunately heading into, I think – and I don’t want to be too dramatic, the next ten to 20 years in our lives are going to be far more difficult at a – on a general level than the last 20 years. I think the United Kingdom, like any of the first world countries, needs to take a position on whether – where it wants to be in that scenario. Does it want to be part of a multilateral solution to find ways to be a leader in bringing actual – actionable solutions to what we are about to face? And I’m not only talking about the migration crisis, food safety, energy security, climate change consequences.
All of this requires Politicians to stop thinking about the world through a very narrow lens and start to think about the world as a whole. We are all in this together, and I think – what I hope to see, and I’m going to allow myself to speak a bit passionately, what I would hope to see is a different approach taken in this country because I fervently believe that this country can be one of the leaders moving forward, if it takes some more positive approach to its positioning, and not a position of thinking only of short-term gain.
Rashmin Sagoo
Thank you. On that note, to our brilliant myth-busting panel, to all of you for joining us today, and to all our colleagues behind the scenes who pulled today together, thank you [applause].
