Sherlock Holmes said: “Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth.” Could this famous dictum apply to Rishi Sunak’s Rwanda Bill?
It is undoubtedly extremely improbable that a treaty made with a small central African country – and the legislation surrounding that agreement – could come to be the centrepiece of British immigration policy.
This weird situation might have been avoided if successive Conservative prime ministers had paid more attention, much earlier, to the explosion of legal migration which their actions have permitted. By making “Stop the boats” – an issue of illegal migration – the sole immigration pledge, Mr Sunak focused on the more shocking immigration problem but neglected the numerically much bigger one, well over 10 times bigger. Legal migration reform was finally addressed only this week.
However, we are where we are – up the creek with the flimsiest of paddles. Can any option work?
A few Conservative MPs in the One Nation Conservatives group – and almost all Labour and Liberal Democrat politicians – are viscerally opposed to any immigration control which risks conflict with the European Court of Human Rights (ECHR). Yet bitter experience has taught us that such conflict is unavoidable if we are serious about protecting our own borders.
The Government needs to take such risks, though in a carefully calculated way. Contrary to what you often hear, our legal system is sovereign and takes precedence over other law. Clashes often happen. Right now, for example, France is defying the ECHR over the return of a jihadist to Uzbekistan.
At the other end of the party’s parliamentary spectrum, a far larger number of Tory MPs want to go further than their Government. Because of disorderly disagreement on this, Suella Braverman was recently removed as home secretary; this week, the immigration minister, Robert Jenrick, resigned.
They were rightly frustrated at the obstacles thrown in their way by the tangled web of lawyers, law officers, courts and officialdom which ensnares every attempt by a democratically elected government to gain full control of immigration.
In a paper from Policy Exchange (Government Lawyers, the Civil Service Code and the Rule of Law), out this week, Professor Richard Ekins, Sir Stephen Laws and Dr Conor Casey expose the now deep-seated problem in which government lawyers and other officials think, mistakenly, that subjugation to the ECHR is a doctrine they are bound to uphold, whatever ministers say, as part of the Civil Service Code. This is professionally and legally wrong. It amounts to challenging the constitutional authority of the elected government.
People like Mr Jenrick long to cut the Gordian knot. It must be one of the most hellish jobs on earth to be a Home Office minister today, trying to overcome a dysfunctional system which comes up with every conceivable reason why something cannot be done. Perhaps that is why Mr Sunak has made the otherwise odd decision to appoint two new immigration ministers in Mr Jenrick’s place, one for legal migration and one “for” (surely he means “against”) illegal migration. One person having to deal with both subjects may be more than human flesh and blood can bear.
It is wrong that a free and sovereign country like ours should be under the ultimate jurisdiction of the ECHR. If that court will not recognise this, we should leave it. But the Tory rebels who feel that way should recognise that this cannot be done at this time. The ground must be prepared philosophically, administratively and politically.
The Tories have never done this, preferring spasms of impotent rage to consistent thought and planning. If it were attempted at this stage in the electoral cycle, with a weak and divided government on its last legs, it would fail. The Government now suggests that it is Rwanda which won’t put up with Britain leaving the ECHR, but I suspect this is a cover for its own position.
Right now, that position is unfortunately correct: the Government lacks the strength and the time. As laments Captain Grimes in Evelyn Waugh’s Decline and Fall: “Too late, old boy, too late. The saddest words in the English language.” Only a new government with a strong majority could think this issue through. Few believe such a government will be a Conservative one next time.
So a successful revolt by Tory backbenchers next week will not win a better immigration policy. It will precipitate either a leadership election or a general election, or possibly both, or force the Government to stagger on for a few more months with no policy against illegal migration to speak of. What is the point of that, morally or politically? It won’t help the country. It will only, in the short term, make the migration crisis worse.
And it won’t make more people vote Conservative at the next election. It resembles that strange time in the 1997 election when voters were encouraged to vote for Conservative candidates dependent on where each stood on Britain’s entry into what later became the euro. That device did nothing whatever to save Tory seats and made it obvious to voters that the Conservatives had become less interested in governing than in quarrelling. Enter Tony Blair with a gigantic majority.
With the impossibilist self-destruct option eliminated, what is left? The case for the Rwanda Bill does exist. Its provisions do greatly narrow the potential intervention of the courts.
In what seemed more like a risk assessment than a judgment of law, the Supreme Court decided last month that Rwanda was not a safe country. Not being in a position to establish the facts independently, the Court relied far too heavily on the opinion of the UN High Commissioner for Refugees (UNHCR) which, like most UN institutions, is not neutral or fair. The Rwanda Bill in effect overrides the Court’s decision, thus removing by statute the general objection to being sent to Rwanda from Britain.
It also narrows the ground on which an individual can claim that he personally (it overwhelmingly is a “he”) should not be sent to Rwanda. Currently, this provision is not strong enough, but it could be toughened up by an amendment disapplying Section 4 of our Human Rights Act (the Bill also disapplies Sections 3 and 6). That would prevent deportation flights to Rwanda being grounded by a blizzard of individual legal claims. If the Bill passed, flights could start in March or April.
That would happen, however, only if the House of Lords voted for the Bill. Most people’s educated guess is that peers will vote it down, defying their own important convention that the upper House should not try to destroy the major policies of the elected government. There would then be no time left before the general election for the Government to invoke the Parliament Act to push its measure through.
That state of affairs would be sad and bad, but it would at least bring out to voters the point that it was the unelected House which was trying to frustrate immigration control. It would add evidence to the charge that “the Blob” arrogates to itself the right to decide who may come into our country. If, on the other hand, the Commons rejects the Rwanda Bill next week, voters will feel even more unrepresented on this subject.
The choice is between the “no chance” position of the Rwanda Bill’s opponents and the “slim chance” policy of the Sunak administration. It is an unhappy choice, but surely not an impossible one to make.