You cannot pass legislation to secure our borders three times, fail on each occasion, and retain the confidence of the public. It’s three strikes and you’re out.
So the Conservative Party has one last chance to stop the endless small boat crossings that are doing untold damage to this country. And one last opportunity to prove to the rest of the Western world, who are watching the outcome of the Rwanda policy with their fingers crossed, that it truly is a blueprint for establishing border security in this age of mass migration.
The device we have at present to fix this problem is the Safety of Rwanda Bill. As the Government has boasted, it does indeed go further than ever before to try to solve the problem. But where this Bill ranks against the two prior Bills that tried to stop the boats is frankly irrelevant. The only question that matters – one that has been largely absent from the debate so far – is: will the Bill enable the Rwanda policy to work? Does it end the merry-go-round of legal challenges that prevent small boat arrivals being swiftly removed in sufficient numbers to create a meaningful deterrent?
Having done as much as I could as immigration minister to strengthen the legislation, I concluded, regrettably, the answer is no. I therefore resigned and set out at length the principal flaws that needed correcting.
In short, as currently drafted, every single small boat arrival will be able to concoct a personal reason for why Rwanda is unsafe for them and they can’t be removed. This will lead to individuals being taken off flights, the courts being overwhelmed and the operational collapse of the policy, with illegal arrivals being released on bail from detention as the backlog of hearings grow.
As night follows day, the Strasbourg Court will again issue interim judgments of the sort that grounded the first attempted Rwanda flight in the summer of 2022. Currently, ministers are only permitted to ignore such measures in a very limited set of circumstances and the highly contested legal advice ministers are bound by is that even to exercise such power would be a breach of international law. In practice, I know the instances this will be used are vanishingly rare, if ever, and so the policy will fail upon first contact with reality.
Despite attempts from concerned MPs to strengthen the Bill, the Government has failed to make the necessary improvements. Consequently, Sir Bill Cash and I have tabled 16 amendments, backed by well over 50 parliamentarians and climbing, with the aim to fix the Bill when it returns to the Commons next week.
The test the Prime Minister has set for the Government to accept amendments to the Bill is that they must have a respectable international law argument. I would argue that, on an issue like border security, the Government must place this vital national interest above contested notions of international law or our “reputation” on the international circuit.
It will become clearer to the public with time that the UK’s membership of the European Convention on Human Rights (ECHR) is unsustainable and the convention unreformable. But it is important to stress that this is not the question being debated in parliament next week, nor the purpose of these amendments.
My amendments have been carefully drawn up in collaboration with distinguished lawyers to meet the Prime Minister’s threshold, with a legal opinion accompanying them by the former attorney general for Northern Ireland and professor of law, John Larkin KC.
For now, I seek to correct the worst excesses of the overtly political Strasbourg Court, namely its propensity to issue interim measures like the one that derailed the flights in the summer of 2022. Commencing the Rwanda scheme without addressing the activism of the Strasbourg Court is like pulling the pin out of a grenade, but not having the foresight to throw it. The former Supreme Justice, Lord Sumption, puts it more elegantly: “if interim measures are available in cases like this, it is probable that no legislative scheme for the prompt removal of illegal immigrants can succeed.”
Crucially, the Court only granted itself the power to issue these binding interim orders in the case of Mamatkulov and Askarov v Turkey (2005), despite the UK and every other original signatory deliberately not providing this power in the founding charter back in 1949. In international law, a court only has the powers that member states have given to it: in the absence of such a power, the Strasbourg Court has no authority to issue such measures and we have no obligation to comply.
As Richard Ekins, professor of law and constitutional government at the University of Oxford, has argued, in refusing to comply with these rule 39 rulings, “the UK would be vindicating the rule of law, not flouting it”. My amendments make clear in law that these orders are simply advisory and are not in any way binding on the Government, meaning the default for ministers is that they will ignore the foreign court and flights are guaranteed to get off.
But symbolic flights that are largely empty will not provide a credible or sustainable deterrent to those in the safety of France considering crossing. The policy intent must be to ensure that recent illegal arrivals are being removed swiftly and at scale. That is why my second set of amendments maximise the number of small boat arrivals eligible for removal by significantly limiting the ability for illegal arrivals to make individualised claims they cannot be removed.
Currently the Bill is operationally unworkable as these claims will significantly reduce the number of illegal arrivals on removal flights and will take months to consider. And in this respect the Bill is also intellectually incoherent – if the fundamental premise of the Bill is that Rwanda is safe, it follows that any claims it is unsafe for a specific individual could be heard once in Rwanda. Under my amendments, only in the exceedingly rare instances where medical issues mean someone is unfit to fly would removals to Rwanda be suspended, thus creating the most powerful deterrent possible.
Lastly I seek to broaden the exclusions of Labour’s Human Rights Act. Before my resignation, I secured the disapplication of large parts of the Human Rights Act (which gives effect to the ECHR in English law), but under sections 4 and 10 of the Human Rights Act, which are retained, a court could swiftly issue a declaration of incompatibility with the ECHR.
At such a stage, the Government would not be obliged to amend the legislation; however it would come under immense pressure to do so from operational partners and the government legal service. If the Government intends to ignore such a ruling, it should accept my amendment which excludes sections 4 and 10 of the Human Rights Act. If not, we can only deduce that it will be willing to suspend the Rwanda policy.
To reject these amendments, and proceed with a Bill that the Government knows from ample internal advice will not work, would be a betrayal of the British public. It would be utterly corrosive to trust in democratic politics given the promises that have been continually made for the last five years. And it would be disastrous for the country, leaving communities exposed to the damage of illegal migration, with the poorest, who are most exposed, suffering most. If there have been 100,000 illegal arrivals in the last five years, such are the macro trends and such is the impotence of the EU, I see no reason why we won’t see another 100,000 in the years ahead.
As legislators, we have the power to avert this catastrophe, for in our sovereign parliament the law is our servant, not our master. We owe it to our constituents – whose interests we are sent to Parliament to advance – to deliver. They will tolerate nothing less.
Robert Jenrick MP is a former immigration minister
William Turner is a seasoned U.K. correspondent with a deep understanding of domestic affairs. With a passion for British politics and culture, he provides insightful analysis and comprehensive coverage of events within the United Kingdom.
