Back in April 2022, when Boris Johnson was still Britain’s prime minister, he announced a plan that was immediately contentious: to send asylum seekers on one-way flights to Rwanda without first hearing their claims for refugee protection in the United Kingdom.
The proposal, which meant that even those granted asylum would stay in the small African country, was so out of step with global norms, and appeared so obviously in breach of Britain’s commitments under humanitarian law, that many political commentators thought Johnson was trying to engineer a failure he could later blame on left-wing activists and the courts.
Two prime ministers have stepped down since then, but the plan has remained central to the governing Conservative Party, despite a series of legal challenges.
Last month, Britain’s Supreme Court rejected the proposal, finding that Rwanda was not a safe country for refugees, and that therefore sending asylum seekers there would, as predicted, violate international and British law.
Rather than letting the matter rest, Prime Minister Rishi Sunak doubled down. After his government signed a treaty with Rwanda that it claims will address the court’s “concerns,” he introduced emergency legislation stating that actually Rwanda is safe for refugees, and prohibiting courts and immigration officials from finding otherwise.
His new bill — a sort of legislative cry of “nuh-UHHH” — passed an initial vote in Parliament on Tuesday night, and now goes to the House of Lords for review.
Many experts believe the bill will ultimately fail. But there is a broader story here. The strange, reality-bending attempt to override the court’s findings suggests that Britain could be following the United States, France, Israel and other nations in a trend that experts say poses a threat to democratic stability: governments that play “constitutional hardball” to test the outer limits of the law.
A crucial factor in any healthy democracy is restraint: what governments could do, but don’t. This kind of forbearance often goes unnoticed until it is threatened by partisan action.
But as Steven Levitsky and Daniel Ziblatt, both Harvard political scientists, wrote in their 2018 book “How Democracies Die,” the norm of restraint is one of the “soft guardrails” that prevents democracies from being destroyed in partisan fights to the death, as has happened to some democracies in Europe and South America in the past.
So when governments begin to play “constitutional hardball,” a term coined by Mark Tushnet, a Harvard legal scholar, that is a warning sign for risks of democratic backsliding. And it is one that is flashing in countries around the world.