Back in June, when the Court of Appeal ruled against the Rwanda policy, I wrote that: “For now, the Government’s defeat on this particular issue should be seen as tactical, rather than strategic.”
Today’s loss at the Supreme Court, on the other hand, may prove decisive. Even if the Government’s proposed remedies were somehow enacted (on which more below), there is scarcely a year left of this Parliament.
I don’t know if the decision surprised the Government, but news of it would certainly have surprised those I was talking to six months ago. Having won in the High Court, and with the Court of Appeal having given a split decision on what seemed eminently challengeable grounds, they were optimistic.
Instead, the Supreme Court has handed down a unanimous defeat. As before, the overall legality of the scheme was not in doubt; the problem lay in its practical implementation. The Court was persuaded, following evidence from the UN Refugee Agency, that Rwanda could not offer adequate guarantees to prevent what’s called refoulement – subjects being returned to countries where their freedom or safety was threatened.
The judges didn’t preclude that improvements couldn’t be made to assuage this concern. But even if it’s doable, the odds of getting it done within this Parliament – which is to say, in time to have any planes taking off by the election – are slim to none.
Coming so soon after the dismissal of Suella Braverman, this is a dangerous moment for Rishi Sunak. It was after all the Home Office, alongside organisations such as Policy Exchange, which advocated for more muscular legislation to underpin the scheme. Her allies will take this ruling as a vindication, and it will raise the temperature on small boats.
It isn’t obvious, however, that such measures would have averted this judgement. It is one thing to remove grounds for individual appeals, quite another to obviate the issue of non-refoulement, which as the Court points out, is a principle embedded in multiple domestic statutes and international obligations.
The Prime Minister’s proposed solution, in theory, might. He apparently intends to bring forward emergency legislation which will declare Rwanda safe, as a matter of domestic law. The Government will also pursue a formal treaty with Kigali (which it has so far averred from doing) in order to provide “guarantees in law” that nobody transferred from the UK would be returned to their home countries.
Such a bill would certainly whack this particular mole. Yet it opens up another challenge: is there going to be a majority in the House of Commons for these measures? The Lords? Braverman accused Sunak of “magical thinking” for avoiding trying this before, but there’s a calculation behind why he did.
Even if they pass, there would likely be the time-consuming process of a second round of legal challenges before any planes could take off.
But there will also likely be a trade-off: the more stringent a bill is at knocking down the legal barriers, the smaller the coalition for it in Parliament will be. Plenty of MPs might want to control our borders, but far fewer seem to will the means than profess too will the end. Until Sunak’s press conference, that number included the Government.
The problem seems to me that you cannot tackle small boats by only tackling small boats, because the barriers to any effective solution arise from decades of law, domestic and international.
As I noted in September, there was a serious point about the fitness of the current rules for today’s circumstances in Braverman’s often ill-judged speech in the United States; chuntering on about “safe and legal routes” is no answer to the problem that the world is getting smaller, vastly more people are eligible for asylum in Britain than this country wants or could accept, and we currently have no way to limit the number of asylum seekers we accept once a claim has been successfully made.
The Rwanda scheme is a very long way from an ideal solution; many of the criticisms made by its opponents (the impracticality, the cost, the small number of people ever likely to be deported) are perfectly fair. The problem is that none of those critics seem to have any alternative answer at all, save (tacitly) simply letting in as many people as can get here, and making it easier to do so.
Unfortunately, the Government is in no position to pursue such a broader renegotiation of the rules governing asylum. There neither time before the election, nor has any pitch-rolling or persuasion been done.
Perhaps more importantly still, there isn’t even any consensus within the Conservative Party about what such changes should be. Bloomberg reports that David Cameron “would not have taken the job”, many Tories believe, were Sunak to propose leaving the European Convention on Human Rights; another large section of the party might mutiny were the Government to throw up its hands and say, in effect, that current obligations make control of Britain’s borders a practically impossibility and that’s too bad.
Suffice to say, such a mutiny now would be absolute madness, from the Conservative Party’s point of view. In the event that enough letters went in and the Prime Minister were deposed, his successor would face almost irresistible pressure to call a general election, at a point when the party would surely be polling lower even than it is at present.
Yet nor can Sunak afford to simply ignore his mutinous right wing. Given the current state of the polls, the one development which could possibly tip the scales towards a Canada ’93-style wipe-out scenario is the emergence of a plausible challenge from the right. It need not do well if enough to win many seats, or any; taking a few thousand votes in enough seats could be catastrophic.
Thus, this emergency legislation, followed presumably by a year-long showdown with the House of Lords and, one assumes, a bid to turn the question into an issue at the general election.
Maybe voters will at least give the Conservatives credit for having a proposal, in contrast to Labour. But it feels just as likely the response will be: you’ve been in power 14 years, and you’re trying to pass this legislation now?
All of which suggests that immigration and international law, two issues inextricably linked, are shaping up to be the next major battlefield in British politics. But it will probably take the relaxed environs of opposition for the Tories to accept that and what it entails, let alone work out a coherent position.