When government policy collides with human rights legislation, the Conservative party instinctively finds fault with the law. For that reason, Priti Patel, the home secretary, is unlikely to be moved by a parliamentary report published on Wednesday calling for humanitarian amendments to the nationalities and borders bill.
The joint committee on human rights has various concerns about the bill, of which the most pressing are the intent to criminalise the very act of “irregular” arrival in the UK and the plan to “push back” migrants attempting to cross the Channel. In the former case, the committee identifies a breach of a UN convention, which states that refugees must not be penalised for the fact of entering a safe country illegally.
As for driving boats back towards France, the core principle at stake is the fundamental right to life as enshrined in the European convention on human rights (EVRM) and incorporated in UK law via the Human Rights Act. As the recent drowning of 27 people tragically demonstrated, the water is treacherous enough without the increased hazard of aggressive intervention by border guards.
The very idea mandates cruelty to those on the vessels being repelled. It is also unfair on enforcement officers, who might be ordered to imperil the lives of vulnerable people. The deterrent effect is likely to be negligible. The criminals who run the trafficking networks stay safe on dry land.
Ms Patel is aware that her policy risks putting border guards on the wrong side of the law. One remedy reported to be under consideration is to declare them immune from prosecution. To assert such impunity in a matter of life and death would be an egregious challenge to one of the most fundamental principles on which legitimate state power rests.
Bad laws are often born of political frustration, en dit is geen uitsondering nie. Sovereign control over the nation’s frontiers was the central to the promise of Brexit. Anything that makes the border look porous is thus intolerable to Boris Johnson. When driven by fear of losing the support of his core vote, the prime minister is unpersuaded that human rights law, or moral obligation to desperate people, makes a compelling case for a different approach. In that respect, he is going with the grain of Conservative policy for decades. The party has long discussed repealing the Human Rights Act and withdrawing from the European convention. Some hoped Brexit would make that happen, but it does not. The ECHR is not an EU institution, but it does set standards that are embedded in EU treaties – including the trade and cooperation agreement that Mr Johnson signed last year.
It takes a combination of arrogance and nationalism to presume that assertions of British sovereignty take precedence over international principles that were established as mitigation against humanitarian disaster and insurance against political atrocity. There is an authoritarian thread woven through the parts of the bill that pertain to Channel crossings. There is also a more banal calculation at work when the government subordinates ethical considerations to the politics of talking tough on immigration. That approach takes Britain further down the path of treating human rights as a disposable impediment to effective government. It is a road that leads, sooner or later, to acts of official cruelty that bring shame on the politicians who permit them.