David Frost
Pledge 5. Stop the Boats. It’s as difficult as everyone warned. According to YouGov, only 6 per cent of Brits think the Government is handling this policy well. The Appeal Court decision won’t have helped.
The issue of illegal arrivals on small boats is so frustrating and so salient because most of us intuitively feel it ought to be an advantage to have a sea border. It has, after all, protected us for most of our history. But now it’s a problem. If you have a land border you can just put a fence up – as the Poles have with Belarus. But a sea border is easy to sail over, and once someone is in British waters they are our problem. If we can’t return illegal arrivals back to France – and France refuses this – then either they must stay or be sent somewhere else.
It’s true, arrivals this year are 12 per cent down on the same point last year, thanks principally to the Prime Minister’s deal with Albania. But the basic shape of the problem remains. At the moment the UK is, in practice, open to anyone who can, somehow, get here. It’s costing the country billions and undermining confidence in the Government.
Hence the Rwanda policy – to deter arrivals by sending to Rwanda those arriving illegally by small boat. Voters support this, but are doubtful it can actually be delivered. It’s not hard to see why. The Appeal Court has just ruled that it is not safe to send people to Rwanda. It isn’t a total defeat: the judges ruled the policy does not break the UN Refugee Convention, and the overall verdict was only by majority, the Lord Chief Justice dissenting. It will now go to the Supreme Court, which could yet take a different view. If so, we might see some Rwanda flights by the end of the year. If not, the policy will be blocked in the courts.
So, enter the Illegal Migration Bill, the second string to the Government’s bow. The Lords debated it on Wednesday. You would certainly not have thought the policy was supported in the country if you had heard peers from all sides, including some Tories, queue up in quivering self-righteousness to denounce it as inhumane, illegal, and counter to our international obligations. Key parts of the Bill have already been voted down and more will certainly go next week.
A major Commons/Lords clash is coming. Unless Labour decides not to block the elected House, the Government will have to use the Parliament Act or acquiesce in Lords amendments, at least some of which are so damaging that it might be better not to have the Bill at all. This will be a real test of nerve and determination. Or will it? As far as I can see, the upcoming Supreme Court ruling is in practice decisive. If it decides the Rwanda policy is legal, then the Bill provides important extra powers, for example on closing the loophole of Theresa May’s Modern Slavery Act, but is not essential to deliver deportations. If on the other hand the Court says the policy is illegal because Rwanda is not safe, the Bill will not help: there will just be further court challenges when it’s passed, with the same result.
The problem is that the Government pulled its punches with the Bill. It doesn’t want to breach or leave the European Convention on Human Rights (ECHR). So the Bill doesn’t do that. But as a result it doesn’t have all the powers it needs. If the Supreme Court doubles down, the government will have three choices.
First, reformulate the policy, for example sending arrivals to an Overseas Territory instead. Second, bring forward a new Bill which explicitly requires illegal arrivals to be sent to Rwanda, notwithstanding any other international or domestic law commitments or legal proceedings. This is probably what Suella Braverman would have preferred in the first place. But it is a potential breach, at the very least, of the ECHR. Third, leave the ECHR. The first is difficult in practice. There may well be no Commons majority for the second or the third.
This situation is all too reminiscent of that facing Boris Johnson in autumn 2019. The Supreme Court under Lady Hale and parliamentary Remainers blocked his central policy, Brexit. The only way through was an election. He won it because he’d shown, in the months before, he was willing to do whatever it took to deliver – and voters backed him. Rishi Sunak might yet get luckier with the Supreme Court. If he doesn’t, he will have to face up to the looming prospect of a confrontation with government lawyers, the Lords, and maybe with Strasbourg – but with voters on his side. He should start preparing for it. Get it right, as in 2019, and it might swing voters back behind the Conservatives as the only party doing what needs to be done. Fail, and it will surely definitively destroy the Government’s credibility.
