Rwanda: Senior Tory says that if Rishi Sunak wants to leave the ECHR it should be in next election manifesto

If Rishi Sunak wants to leave the European Convention on Human Rights to force the Rwanda plan through “it should be in the manifesto”, Lord David Frost has said.

The senior Tory peer, who was Boris Johnson’s Brexit negotiator, has said that leaving the ECHR “is not something where we should just pull the ripcord, do it and expect there to be no problems, it’s a major, major issue”. Lord Frost cited the integration of the convention with the Good Friday Agreement and the UK’s trade deal with the EU.

“I think it should be in the manifesto and it needs to be well thought through,” he said. “And [the Conservatives should] explain how we would deal with these problems, and why it’s worth it to get back control of our asylum system and insulate the legal system from European control.”

The debate around the convention has heated up after the Supreme Court put the brakes on the government’s Rwanda plan. Sunak wants to send asylum seekers to the east African country for processing and resettlement as part of his pledge to “stop the boats”. He says it will act as a deterrent to other migrants, however, so far, the government has paid Rwanda £140million and not one flight has taken off.

The Supreme Court declared the policy unlawful last week, as it said there was a “substantive risk” of “refoulement”, which is asylum seekers being returned to the country they had fled from - and thus being put in danger. The justices said this would break not only the ECHR, but also the UK’s own Human Rights Act and the UN Refugee Convention.

In a speech after the ruling, Sunak appeared to threaten to leave the ECHR. He said: "I will not allow a foreign court to block these flights. If the Strasbourg court chooses to intervene against the express wishes of Parliament I’m prepared to do what is necessary to get flights off."

Since then, a debate has raged within the Conservative Party and government over the UK’s future with the ECHR, which was set up by the UK after the Second World War to prevent atrocities perpetrated by states like Nazi Germany. The Times reported that the Cabinet is split on this, with Immigration Minister Robert Jenrick pushing for legislation to disapply the ECHR and Human Rights Act in asylum cases.

It is thought that Home Secretary James Cleverly, Attorney General Victoria Prentis and Justice Secretary Alex Chalk are against this. Cleverly has distanced himself publicly from moves to leave the ECHR, saying he didn’t think it would be necessary.

Speaking at a Centre for Brexit Policy event, Lord Frost said that critics of leaving “will point, rightly, that there are convention rights involved in the Good Friday Agreement, and that there is a section underpinning the agreement with the EU”. He added: “Now we can’t just ignore those things, we need a plan to deal with them and if we go down this road, make the solutions stick.”

Sunak’s plan to get flights in the air to Rwanda by next Spring is two-fold. The government will shortly publish details of a new treaty with the east African nation, which contains a legally binding agreement that asylum seekers will not be at risk of being returned to their home countries. This practice - known legally as “refoulement” - was a key part of the Supreme Court’s ruling. 

Secondly, the Prime Minister wants Parliament to pass a law stating that Rwanda is safe. It is thought this will stop systematic legal challenges, however individuals may still be able to appeal on a case by case basis. 

The Law Society has said that if the UK left the ECHR it would become a pariah. President Lubna Shuja said: “Leaving the ECHR would mean the UK would sit as an outlier in Europe, alongside only Russia and Belarus, who are already outside the convention.”

While experts have said that the UK may have to leave additional international treaties, such as the UN Refugee Convention and the UN's convention against torture.

Speaking about the Supreme Court ruling, immigration barrister Colin Yeo told BBC Radio 5 Live: “It’s not just an unusual legal rule, it’s actually deeply embedded in the international treaty system. It’s making it quite hard for the government to go behind that … the government would have to withdraw from the whole treaty system essentially in order to go ahead with that. 

“A lot of us would say if you want to withdraw from these treaties and make yourself an international pariah in order to then send people into a situation where they’re going to be seriously harmed, you really ought to think about whether that’s the right thing to do.”

While Sile Reynolds, head of asylum advocacy at Freedom From Torture charity, said it was still unclear how the new treaty would deal with the refoulement issue.

She said: "Rwanda is party to the 1951 Refugee Convention - which contains a refoulement clause - and it still refoules refugees. We can’t know until we see the text of a treaty to what extent it might deal with the problem but it’s unlikely without substantial change to the Rwandan asylum and judicial system."