By David Renton
Criticised for his government’s plans to send refugees to Rwanda, the Prime Minister acknowledged that they would face opposition, including the likelihood of challenge by what he termed “politically motivated lawyers”.
Johnson has invoked that threat repeatedly in recent years. In September 2020, Priti Patel denounced “activist lawyers” preventing deportations. Four days later, a man entered a firm of immigration solicitors and struck the receptionist, before he was overwhelmed. Far-right literature and flags were found at the assailant’s home.
For a time, even the Conservatives were embarrassed to have been seen encouraging violence against people who were just doing their job. It was Johnson who then doubled down on this attack-line, telling the Conservative conference in October 2020 that the criminal justice system was “being hamstrung by lefty human rights lawyers”.
Key parts of the government’s legislative programme are barely inching through Parliament. What the government is forcing through are measures which shield it from challenge in the courts: including the Judicial Review and Courts Bill, which is intended to prevent litigants from having any remedy even where governments acts are found to be unlawful, and the repeal of the Human Rights Act. A watered-down replacement of that Act will make human rights meaningless by requiring permission before rights claim can be brought, and prevent courts from enforcing certain rights – in particular those relied on by migrants.
The plan to deport refugees to Rwanda for processing should be seen in this light. It has been prioritised as part of the government’s attack on the rule of law. It will put refugees at the whim of the Home Office, the most dysfunctional body in all of British public life, one whose decisions are characterised by delay, confusion and malice.
Until now, whenever the Home Office has denied a person refugee status, they have at least had certain defences. Challenges to Home Office decisions have attracted legal aid. Anyone could bring them, in other word, even those without any money.
Under the memorandum negotiated between the UK and Rwanda, the job of processing asylum applications will be given to the Rwandan authorities and, in theory, litigants will have access to “independent and impartial due process of appeal in accordance with Rwandan laws.”
What refugees won’t have is legal aid. In the unlikely event that an asylum seeker has access to significant funds of their own they might (in theory) obtain an international lawyer and ask the Rwandan court to implement international human rights law. But Rwanda does not have a highly-developed infrastructure of specialist immigration lawyers on the same scale as Britain, where many of our advocates have spent 30 or 40 years working in this area of law, and have built up knowledge, technique, and are used to having to fight fearlessly for their clients, despised as those clients are by our politicians and tabloid press.
The Conservatives know that under their scheme, refugees will face delays, detention in camps, separation from the people they love and a community which could support them. The process will cause suffering. That is its whole point.
But, for the Conservatives, such misery is legitimate if it provides an opportunity for Boris Johnson to recycle his attacks on Keir Starmer, a man who has the misfortune of having spent years working as a human rights lawyer – a job he now seems incapable of defending.
The government has said the repeal of the Human Rights Act is necessary to prevent “illegal and irregular migration”, by which ministers mean refugees who travel without prior authorisation from the government which persecutes them. When refugees have fled Ukraine, these past two months, did Vladimir Putin give them his permission to leave?
Beyond refugees, many other groups of people rely human rights to resolve what would otherwise be significant omissions form our law. The Hillsborough families, tenants fighting eviction, parents challenging local authority plans to take their children into care: all of these groups and many other people besides have benefitted from the legal infrastructure which Johnson’s government is now committed to dismantling.
For the left, the choices are different. We must defend refugees in court, even in the knowledge that ministers plan to use any defeat there (as they did over Brexit) as a way of repainting this collection of crooks and freeloaders as outsiders in relation to the state. Yet the focus of any campaign needs to be not on winning over judges but, at the same time, persuading voters of the point of principle – refugees’ right to asylum.
Only if people accept that the Rwandan scheme is wrong can any legal victory last. That victory is possible; both refugees and British voters are being lied to and the latter are increasingly conscious of it. The hopes of both groups rest on the defeat of our common enemies.
David Renton is a campaigner and barrister. His latest book, Against the Law: Why Justice Requires Fewer Laws and a Smaller State, is published by Repeater in July.
Image: Priti Patel; Source: https://secure.flickr.com/photos/policyexchange/8077475823/; Author: Policy Exchange; licensed under the Creative Commons Attribution 2.0 Generic license.
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