The Court ruled there are “substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement” – meaning the practice of forcibly returning them to their country of origin or another nation where they are at risk of being subject to persecution.
The word “notwithstanding” emerged in sacked home secretary Suella Braverman’s letter to Prime Minister Rishi Sunak on Tuesday following her departure from government, in which she claimed she agreed to support her colleague with his Tory leadership bid following “firm assurances” on “key policy priorities”.
“[To] include specific ‘notwithstanding clauses’ into new legislation to stop the boats, i.e. exclude the operation of the European Convention of Human Rights, Human Rights Act and other international law that had thus far obstructed progress on this issue,” she wrote.
Put even more simply, ‘notwithstanding’ in this legal context means ‘despite’ – so Braverman is now calling on Sunak to introduce legislation to enable the Rwanda policy to be carried out in spite of whatever is contained in these significant human rights laws.
My letter to the Prime Minister
This was emphasised by Braverman once again in an article for The Telegraph on Thursday following the Supreme Court’s decision the day before, with the second of her “five tests” to ensure the government’s “illegal migration” legislation works effectively.
“Legislation must therefore circumvent the lengthy process of further domestic litigation, to ensure that flights can take off as soon as the new Bill becomes law. To do this, the Bill must exclude all avenues of legal challenge.
“The entirety of the Human Rights Act and European Convention on Human Rights, and other relevant international obligations, or legislation, including the Refugee Convention, must be disapplied by way of clear 'notwithstanding' clauses.
“Judicial review, all common law challenges, and all injunctive relief, including the suspensive challenges available under the Illegal Migration Act must be expressly excluded,” she wrote.
Sunak is yet to go as far as explicitly call for the UK to leave the ECHR, but told reporters at a Downing Street press conference this week that he is prepared to “revisit” international relationships to “remove the obstacles in our way”.
“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 am prepared to do what [is] necessary to get the flights off,” he said.