19 November 2023

Magical Thinking and Obsessive Desires

Conservative Politics, Human Rights, and the Rwanda Judgment

On May 4th 2015, the Prime Minister David Cameron tweeted:

Britain faces a simple and inescapable choice – stability and strong Government with me, or chaos with Ed Miliband.

When, three days later, a shock result delivered an unexpected majority to the Conservatives, Cameron announced the referendum on the UK’s membership of the European Union. The ensuing eight years of chaotic Conservative Party psychodrama has, if the past few months of polls are right, fostered a desperate wish among the British public for government to become dull, boring, and competent under a Labour Party leader who publicly personifies those qualities.

The latest episode of the Conservative Party’s dysfunctional political family feuding dropped last week with a Cabinet reshuffle. Home Secretary, Suella Braverman, was sacked and replaced with James Cleverly. David Cameron (remember him?) was recalled from his political retirement as Oxfordshire shed-dweller and dodgy finance company lobbyist to replace Cleverly as Foreign Secretary. If this was a Korean television drama, we would know that the story arc is close to its conclusion.

The timing of the reshuffle for Monday 13th November allowed the Prime Minister, Rishi Sunak, to rid himself of Braverman before the Supreme Court’s ruling on the government’s Rwanda Plan, the symbolic core of its “illegal migration” policy. The sacking, the ruling, and the aftermath demonstrate both a key division in the Conservative Party and illustrate the choice it faces on the kind of politics it will promote after the next election: socially liberal technocratic nationalism (the Sunak option) or illiberal ‘culture war’ nationalism (the Braverman faction). The election has to be called by 17 December 2024 and the Conservatives are currently expected to lose it.

The Supreme Court’s judgment raises the stakes in this conflict because its grounds for ruling the Rwanda Plan unlawful appear to provide ammunition for the radical illiberal wing of the Conservative Party.

The Ruling

The Rwanda Plan refers to a political agreement between the UK and Rwanda to relocate some asylum seekers who arrive “irregularly” in the UK to Rwanda to process their claims and, if successful, be granted asylum in Rwanda. The UK Supreme Court ([2023] UKSC 42) on Wednesday 15th November found the policy is unlawful because it is not compatible with the norm of non-refoulement (expressed in domestic UK law, European law, and international law related to treaty commitments).

Reaching this conclusion involved three steps:

  • A legal reconstruction of the norm of non-refoulement, and the UK’s commitment thereto, which demonstrates the norm is breached by sending an asylum seeker to a country in which there is a genuine risk of refoulement;
  • The determination that the court is legally required to consider for itself the evidence concerning whether Rwanda is a safe country for asylum seekers (rather than being asked to judge whether the Home Secretary has formed a reasonable view);
  • The judgment that Rwanda is not a safe country and that the UK would be in breach of the requirements of the non-refoulement principle by sending asylum seekers there.

The judgment effectively undermines the linchpin of the current UK government’s flagship ‘stop the boats’ migration policy, namely, relocation of irregularly arriving asylum seekers to another state (since Rwanda was the only available option).

Its Political Context

What does this mean politically? Two days before the Supreme Court’s judgment, Rishi Sunak had sacked Suella Braverman from her role as the Home Secretary as part of a general Cabinet reshuffle. It has been clear for some time that Braverman is preparing for a presumptive leadership bid following the next election. Alongside  Kemi Badenoch, she is the most likely challenger from the culturally illiberal right. Her strategy has been to put Sunak in an impossible position by acting out in ever more outrageous ways and therefore forcing him either to sack her (“martyrdom”) or to look weak in comparison to her. Recent outbursts on homelessness as a lifestyle choice, on protests for a ceasefire in Gaza as antisemitic extremism, and on police bias in regulating protests gave Sunak ample grounds for her dismissal and removing her as part of a wider re-organisation of his ministerial team was probably Sunak’s best option. However, Braverman has wasted no time in publishing a letter to Sunak accusing him of a betrayal of ‘your promise to the nation that you would do “whatever it takes” to stop the boats’ and arguing:

If we lose in the supreme court, an outcome that I have consistently argued we must be prepared for, you will have wasted a year and an act of parliament, only to arrive back at square one. Worse than this, your magical thinking – believing that you can will your way through this without upsetting polite opinion – has meant you have failed to prepare any sort of credible plan B.

In the face of this vituperative onslaught, Sunak is publicly insisting that he will do whatever it takes to get the Rwanda Plan back on track. However, the proposed actions of having a treaty with Rwanda and emergency legislation in the UK that declares Rwanda to be a safe country are insufficient – as Sunak surely knows. Indeed, the proposed emergency legislation seems more designed to create problems for the Labour Party by enabling him to portray them as blocking plans to “stop the boats” than address the issue itself.

Competitive Nationalism instead of Human Rights

Given the reasoning of the judgment, it is clear that Braverman has a firmer grip on what would be required to rescue the Rwanda Plan. This involves disapplying the Human Rights Act, the European Convention on Human Rights, and relevant sections of other international treaty obligations to which the UK is a signatory including the Refugee Convention [Art 33(1)], the United Nations International Covenant on Civil and Political Rights [Art 2 read with Art 6 and 7], the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [Art 3(1)].

This is a step Braverman is perfectly happy to take, indeed desirous of making. It is, she proclaims, “her ‘dream’ and ‘obsession’ to see a flight take asylum seekers to Rwanda”. Sunak, by contrast, appears less willing for the UK to damage further an international reputation already torn and tattered by Johnson’s reckless premiership and Truss’s brief prime ministerial spasm. The danger of Braverman’s position is not simply that of turning the UK into a state that publicly treats international treaty obligations as a buffet from which one can pick and choose at will. It also aims at effectively dismantling the human rights architecture established in the aftermath of global warfare and genocide and encouraging a return to an international politics of competitive nationalism in its stead at a time when global cooperation in the face of climate change (and increasing climate-induced migration) is more necessary than ever before. Is this fascism? I will leave that debate to others, but it certainly coheres with the varied forms of ‘illiberal democracy’ that Putin, Erdogan, Orban, Modi, and others have pioneered in recent years.

Suella’s Dream and Sunak’s Options

It may appear that reinstating the Rwanda Plan requires embracing Braverman’s illiberalism. However, the temptation for Sunak to steal Suella’s clothes may be tempered not only by his discomfort with her radicalism, but also by a comment within the Supreme Court’s ruling.

Section 25 of the judgment inserts a seemingly unnecessary comment:

It may be that the principle of non-refoulement also forms part of customary international law. The United Kingdom has subscribed to this view, along with the other states parties to the Refugee Convention, in the 2001 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (UN Doc HCR/MMSP/2001/09). The fourth recital to the preamble to the declaration acknowledged the continuing relevance and resilience of the international regime of rights and principles established for the protection of refugees, “including at its core the principle of non-refoulement, whose applicability is embedded in customary international law”. The significance of non-refoulment being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect. However, as we have not been addressed on this matter, we do not rely on it in our reasoning.

I read the deliberate insertion of this comment as the court making clear that it would understand itself to be required to make a ruling on this matter if the government chose to adopt the Braverman strategy. Because legal challenges to this course of action are virtually guaranteed, this means that regardless of the substance of the court’s ruling, there appears no realistic prospect of reviving the Rwanda Plan prior to the general election.

It is also important to notice that the Supreme Court found nothing unlawful about states engaging in bilateral agreements with other states of the general kind represented by the Rwanda Plan. This notably differs from UNHCR’s preference for asylum seekers to stay within the state in which they made their claim if it is successful. The Court does not rule out such responsibility exchanges if the receiving state’s asylum determination procedures are adequate and it can be confidently expected not to engage in refoulement [UKSC 42 s.24]. Hence it is open to Sunak’s government to seek other partners for such an agreement or to work with Rwanda to address the problems identified by the judgment with their current asylum system. However, neither of these options are likely to be accomplished before the next general election.

Sunak’s current political strategy is, understandably, a policy of deflecting attention from the unpalatable political reality that he cannot revive the Rwanda Plan during this Parliament. Deflect media attention with the Cameron appointment. Deflect media focus onto the Labour Party and the House of Lords through emergency legislation that both will oppose. Deflect media attention by announcing a radical shake-up of the UK’s foreign aid and development policy. Braverman’s strategy is to try and keep the focus on Sunak’s “betrayal” of the British public in order to garner support among right-wing Conservative MPs and party members. Meanwhile the British public shows every sign of desperately hoping that the latest episode of this long running drama is the last and will just … end.

Suella as Symptom and the Future of Global Politics

If we step back from the UK scene, we should notice that this whole debacle around asylum and immigration is a product of a wider set of problems. These are also manifest in, for example, the EU’s deals with Turkey, Libya and Tunisia and its attempts to wash its hands of the human rights abuses, drownings and other deaths at its borders. The politics represented by Suella Braverman are not solely a UK phenomenon; they are to be found across Europe, Oceania, and the Americas. In relation to refugee protection, the general danger represented by this politics was long ago pointed out by Erica Feller, former UNHCR Assistant High Commissioner for Protection:

Refugee protection is a global concern and a common trust. This means that responsibility for it is shared, not individual. It also means that, unless this is shouldered widely, it may be borne by none.

On human rights, the last word should go to Sir David Normington, former Home Office permanent secretary who, on being asked whether, as Braverman charges, international law was outdated, remarked:

“What is true is that the rights of people to not be tortured never goes out of date.”


My thanks to Nicholas Baigent, Kiran Bannerjee, Chris Bertram, Jon Courtenay Grimwood, Matt Lister, Ben Saunders and Eric Schliesser for offering to give quick reactions to an earlier draft. Particular thanks to Anja Bossow for specific and very helpful editorial suggestions that greatly improved the final version.


SUGGESTED CITATION  Owen, David: Magical Thinking and Obsessive Desires: Conservative Politics, Human Rights, and the Rwanda Judgment , VerfBlog, 2023/11/19, https://verfassungsblog.de/magical-thinking-and-obsessive-desires/, DOI: 10.59704/aed0a7508877030b.

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