The Government says that the Rwandan Government is unwilling to sign any agreement that breaks international law. And that since amendments to the Rwanda Bill which seek further to defy the European Court of Human Rights or limit the rights of appeals would do so, any such must be rejected.
If so, it follows that amendments of this kind, if moved in the Commons by the European Research Group and its allies, would torpedo the deal on which the Bill is based. And the centrepiece of the Government’s plan to stop the boats would no longer exist. Ministers would have no workable replacement. Nor would anyone else, not least the Labour Party.
The Government’s argument also counters another put by the ERG, Suella Braverman, who writes on this site today, Robert Jenrick, and others. Namely, that since the Lords will probably reject the Government’s Bill, it might as well be sent a stronger one, on the ground that one might as well be hung for a sheep as a lamb.
However, matters are not that simple. As today’s vote looms, most of the Tory Left in the Parliamentary Party seems prepared to vote for Second Reading. Parts of the Conservative right, however, appears unwilling to do so, at least as matters stand. But they might if the Government makes it clear during the debate that it is willing to consider amendments.
James Cleverly, who didn’t have a great month in this site’s last Cabinet League Table, must thus, if he moves Second Reading today, seek to soothe the Tory Right, as it quizzes him about amendments that would toughen up the Bill on appeals and the ECtHR, while not inflaming the Tory Left, who are opposed to them – all without compromising the Government’s own position.
This is a tangled web, made no less complex by the relationship between the Goverrnment’s scheme and international law. It’s worth noting at the start that the Government of Rwanda has no objection, as far as can be seen, to the Bill’s incompatability with parts of the Human Rights Act and its provisions for the defiance of any Section 39 order made by the ECtHR.
Friends of Robert Jenrick say that some legal advisers to the Government believe that a tougher Bill would be compatible with international law. The Government denies this claim – which, certainly, is the view neither of Victoria Prentis, the Attorney General, nor that of James Eadie, the “Treasury Devil”.
Furthermore, Braverman and Jenrick say that the Rwandan Government showed no interest in the Government’s approach to the ECHR when they served as Ministers, and that the Government argument with which this article opened – that toughening up the Bill would alienate the Rwandans – was introduced late in the day by Downing Street and the Home Office to quell the revolt from the right (or to try to).
The Government denies this assertion, too – but it helps to illustrate a core point about today’s vote. Namely, that while Ministers of all parties and none want to act within the law, they don’t “follow the law” any more than during Covid they “followed the science”. The fundamentals of this Bill are political, not legal.
Rishi Sunak and his Ministers – not least Braverman and Jenrick – have reduced the illegal crossings. But fewer boats isn’t no boats – and the Prime Minister has pledged to stop them. He is prepared to defy a Section 39 ruling from the ECtHR, but not to leave its jurisdiction altogether – at least, not in relation to the boats, and not yet.
On one side of him stands the ERG and its friends, some of whom want to quit the European Convention on Human Rights altogether. On the other stands the One Nation Caucus and its allies, nearly all of whom don’t take that position. Prentis, it is reported, would oppose defying a Section 39 ruling, for which provision is made in the Bill for which she will vote later today.
What does the average Conservative backbencher make of it all – one who is a member neither of the ERG, say, nor of One Nation? His hunch would surely be that the Bill may not make it through the Lords and that, if it does, its fate at the hands of the courts is uncertain. Whatever happens, the Prime Minister may find himself fighting an election with a significant part of his party calling for Britain to quit the ECHR.
This backbencher will be anxious about retaining his seat if his majority is much less than 20,000. He will say in private that Sunak is failing, as Liz Truss and Boris Johnson, in their different ways, also failed. With Labour’s lead at some 20 points in the polls, he could scarcely think otherwise.
And he will know that if the Bill fails at Second Reading today, a ballot of confidence in Sunak’s leadership will move closer. Some Tories who abstain or even vote against the Bill today will be driven purely by the conviction that it won’t stop the boats. Others will also, as they despair of holding their seats, want a ballot.
Perhaps a third leadership election in less than two years – and the provision of a third successive Prime Minister without a mandate from the voters – would somehow shore up the fragile Conservative building. It would more likely represent, to borrow a phrase recently deployed by Jenrick, a triumph of hope over experience.
Either way, the choice for our backbencher is surely a simple one – though not easy, given the unknown fate of the Bill if it passes Second Reading and the obscurity of the legal arguments. If he wants a leadership ballot, he will vote against the Bill or, since he may not want to declare his hand too openly, abstain.
If he doesn’t, he will cross his fingers and hope for luck – or, rather, that the Bill can be strengthened in Committee and Report; that it will pass the Lords, that individual appeals don’t clog up the courts, that planes with migrant passengers take off for Rwanda before the next election, and that their doing so acts, and is seen to act, as a deterrent to illegal entry.
He will do so without confidence that any of these things will necessarily happen – thinking perhaps that the scheme is ahead of its time and that, within ten years or so, the European landscape will be almost unrecognisable, with our neighbours ignoring or recasting their international obligations as more migrants enter Europe and more populists win election.
At any rate, backbenchers of all kinds will want to keep their eyes and ears open. The vote takes place at seven this evening. If the whips conclude this afternoon that the Government may lose, might the vote be declared one of confidence, after all? Or could the Bill be pulled altogether? Who knows what threats may be made and concessions offered before the vote takes place.