Small boat arrivals will be divided into two streams – those who can be returned to a safe country, who will thus be ineligible for asylum in Britain, and those who can’t be, who will be sent for asylum in Rwanda. “We will detain those who come here illegally and then remove them in weeks,” Rishi Sunak said at his press conference yesterday evening.
People held will be entitled to apply for bail from the courts only after 28 days, by which time the Government expects them to be here no longer. The only people not eligible for deportation will be unaccompanied children, those who are too medically unfit to fly and those who can demonstrate “a real risk of serious and irreversible harm” in the country they would be deported to.
Those removed from Britain will be ineligible to re-enter, and the Prime Minister’s plan will be retrospective. And there will be no automatic right to make a modern slavery claim. Sunak made much yesterday of increased returns to Albania and a new deal with France.
Once the plan is up and running – and Ministers are relying on it deterring arrivals, as much as detaining them, if the boats are to stop altogether – an annual quota will be set for refugees. All other genuine cases will end up in Rwanda (or elsewhere – if the Government can come to similar arrangements with other countries.)
This is how Sunak proposes to square the circle of our potential obligation under the Refugee Convention to the 100 million people displaced worldwide with a cap on numbers each year. In a nutshell, we’ll meet our obligations to aid refugees, but not here in Britain outside that fixed number. As for appeals to the courts from detainees, there will simply be no time for them.
So much, at least, for theory. Practice will raise questions. For a start, some 80,000 people are expected to arrive by small boat this year. Where would they be detained, since our detention capacity is under 2000? And if only 200 can be flown to Rwanda, as some currently expect, what of the remaining 78,800 or so?
Next, when will the Prime Minister’s plan come into effect, since the Bill to help enact it will be fiercely resisted, at least in the Lords – especially over the Modern Slavery proposals, on which Theresa May will surely pronounce, too? And if this scheme is so effective, why hasn’t it been tried before?
That last question is best put to Boris Johnson and Priti Patel, Suella Braverman’s predecessor as Home Secretary. The Government’s response to the others begins, as politicians tend to say to interviewers, by rejecting the premis of the questions. Rwanda will scale up the number of claimants it will take once the plan is in effect, they say.
Furthermore, the deterrent effect will bite, thus reducing the number of arrivals. Nonetheless, such measures will be inventively tested – not least in the courts, where lawyers, like cyber hackers probing for weaknesses in a computer system, will test Sunak’s proposed new measures, just as they have sought to test Patel’s Nationality and Borders Bill.
The Government’s response is that our courts will do what Parliament tells them to do. But hang on a moment. The High Court has already ruled that the Rwanda scheme is lawful. Why, then, have planes not already taken off? One of the reasons is appeals in individual cases, or another appeal to the Court on different grounds. And there is another cause of potential delay.
As Iain Duncan Smith pointed out in the Commons yesterday, the European Court of Human Rights ruled against particular removals to Rwanda last summer – and Ministers haven’t since sought to carry any out. What if anything will change if the Court rules in a similar way again?
Sunak was pressed on the matter at his press conference yesterday evening, and his answer was to complain about the Court’s procedure – namely, the issuing by an anonymous judge of what’s called a rule 39 order with no Government right to appeal or apply for dismissal.
Other countries, he said, are also unhappy with this form of practice. The Attorney General has raised the Government’s concerns with the court in advance of announcing its new scheme. But the rub comes in Braverman’s admission yesterday that “we cannot make a definitive statement of compatibility under section 19 1b of the human rights act”.
In a letter to Conservative MPs, she also said that there was a “more than 50 per cent chance” that the provisions of the legislation would be incompatible with the European Convention on Human Rights. It’s important to note that this doesn’t mean in Ministers’ view that we are wide of our international obligations.
Now turn from law to politics. On the one hand, the Government says that it isn’t expecting the Court to challenge the new legislation, and that Britain isn’t going to leave the ECHR. On the other, the Home Secretary says that the planned new legislation may be wide of the ECHR, and the Prime Minister adds that it will fight any case vigorously.
That looks like throwing down the gauntlet to the Court. As I wrote yesterday, Braverman has wanted measures that take Britain to the very edge of international law, while Victoria Prentis, the Attorney General, has been resistant to anything that threatens to drag us over it. Sunak, after some division within Downing Street, has moved decisively in the Home Office’s direction.
He seems to have grasped that only a version of the Policy Exchange plan which Braverman has drawn on stands a chance of stopping the boats (or at least drastically reducing their number). All credit to him, in the wake of his action on Section 35 and improvement of the Northern Ireland Protocol, for grasping the nettle.
But is he really prepared, in the last resort, to pull it up by the roots – in other words, to leave the ECHR if the court rules against him, and a mass of civil servants and public officials declare that they are unwilling to flout its rulings? Prentis has said that we won’t leave. Dominic Raab has refused to rule the possibility out.
There is no Commons majority for quitting – and the Prime Minister has managed, to date, to keep the Conservative left onside. (Damian Green writes in support of the Government today.) But might Sunak be willing, in extremis, to whack a commitment to leave in the next Conservative manifesto?
For however adaptive Keir Starmer may be, Labour would be unable to follow suit – at least, with any coherence. Its line on the Government’s plan is to attack Ministers for incompetence, not malevolence. That may not hold up too well when Labour MPs have actually to vote on the Government’s proposed measures.
Braveman is already out and about attacking Labour for voting “against life sentences for people smugglers and new powers to remove foreign offenders”. “We tried to stop the small boat crossings without changing our laws,” she says in an e-mail to Party members. “But an activist blob of left-wing lawyers, civil servants [my italics] and the Labour Party blocked us.”
Sunak may not want to turn the next election into a referendum on small boats, or try to. But politics has a momentum of its own. And for whatever reason, he may be morphing into the politician I hoped he might become – the moderate man whose patience is exhausted. As Oliver Cromwell put it, “A man never goes so far as when he does not know whither he is going.”