As a younger journalist, I once made the mistake of asking a gnarled veteran what was new. “Nothing’s ever new,” came the sardonic reply, “it just happens to different people.” It isn’t a universal adage, but reliable in politics and especially the politics of failure, which is more common and less original than success.
Rishi Sunak, for example, is hardly the first prime minister to make promises about immigration that he can’t keep. He isn’t even the first prime minister since 2022 to pass a law cracking down on migration across the Channel in small boats. Measures were included in Boris Johnson’s Nationalities and Borders Act, superseded this year by the Illegal Migration Act.
The statute book is a palimpsest of revisions in this area, each one expressing a new panic at the prospect of inundation by swarthy foreign hordes. That was the Jews once and generations of integration haven’t extinguished the memory.
Precedent suggests Sunak’s plan will fail. The primary mechanism — detaining and deporting pretty much everyone who comes ashore without the correct paperwork — hasn’t even come into force. The new regime is on hold, pending a decision by the Supreme Court on the legality of a scheme to dispatch asylum claimants to Rwanda.
If that verdict goes against the government, the edifice of Sunak’s migration policy collapses. The prime minister would then come under intense pressure from Tory MPs to repudiate the European Convention on Human Rights (ECHR), which is the legal foundation for appeals that have grounded deportation flights to Kigali.
Even if the Supreme Court gives the green light, a Conservative faction will agitate to quit the ECHR. This is already touted as a potential manifesto pledge ahead of the next general election. Sunak doesn’t rule it out, saying only that he doesn’t think such a move is “necessary”. Hardline Eurosceptics disagree. They itch to complete a continental rupture that Brexit started.
The European Court of Human Rights is the judicial arm of the Council of Europe, which is not the EU. But they are sibling institutions. Both were conceived within a decade of WW2 from the same determination to rebuild an incinerated civilisation on principles of law and international cooperation. An early advocate of that ambition was Winston Churchill. The Council of Europe’s founding treaty was signed in London. British lawyers were instrumental in drafting the Human Rights Convention.
That is a proud chapter in this nation’s history and part of the reason I am British at all. My parents were neither refugees, nor economic migrants.
They would have been materially better off staying in their native South Africa, but that would have meant acquiescence to apartheid. They emigrated on their wedding day to start a family in a country where politics was not morally abhorrent. Like millions of migrants, they chose the UK as a haven of stability, security and democracy.
To be identified as such a destination is one of the highest compliments a country can be paid. It is wasted on those Conservatives who now cast human rights law as a trick that meddlesome foreign judges deploy in a conspiracy against national sovereignty. None of this is new, it’s just happening to a different prime minister.
David Cameron made a commitment to scrap the Human Rights Act (which embeds the ECHR in UK law) in his 2015 manifesto. Boris Johnson hinted at the same purpose ahead of the 2019 election, promising to “update” the act. Those pledges went unfulfilled. That is because any supposed benefit a government may gain in derogation from the ECHR is outweighed by the cost of Britain advertising itself as a country that treats humanitarian law as a tedious, dispensable burden.
Among European nations, only Russia and Belarus are currently excluded from the Council of Europe. Would Sunak really put Britain in that pariah’s clique through impatience to deny seafaring refugees sanctuary? Aside from the moral implications, it would be an act of diplomatic self-sabotage. A practical requirement of effective border control is good relations with neighbours, which in the case of cross-Channel traffic means France and other coastal EU states.
Trashing the ECHR would be interpreted by Britain’s allies as a recrudescence of the most paranoid, vandalistic Brexit ethos. They wouldn’t be wrong. Progress Sunak has made in defusing post-Brexit tensions over trade and the Northern Ireland protocol would be undone, for no workable benefit.
This is a question about the kind of country Britain wants to be and the face it shows to the rest of the world. That choice was made once before, in the middle of the 20th century. The moral imperative then was unambiguous and it hasn’t really changed. The fundamental rights that Europe’s democracies swore to uphold after the Second World War are not new. They just belong to different people.
Rafael Behr is a Guardian columnist
