How do you prefer the next Immigration Bill? “Full fat” – that’s to say, containing notwithstanding clauses which disapply the European Convention on Human Rights, the Refugee Convention, the Human Rights Act and more? “Low fat” – in other words, with no such items? Or “semi-skimmed”, as Rishi Sunak may prefer? (Though it isn’t clear what that would mean in practice.)
I have news for you. It may not matter – in the sense that none of these variants may make it onto the statute book. The House of Lords dislikes the Government’s migration legislation. And the forthcoming immigration Bill will be the third major piece of migration law put to Parliament since the last general election.
Furthermore, peers detest the Rwanda scheme which the Bill will seek to implement. They will queue up to point out that the second of those measures, the Illegal Migration Act, completed its Parliamentary journey last summer – and that they were told by Ministers that, if passed, it would provide the means to stop the boats.
Suella Braverman wanted notwithstanding clauses in that Act. Government lawyers argued that putting them in would make successful challenges more likely in the courts. But that happened anyway – with the Supreme Court ruling that Rwanda would not be a safe country for asylum seekers sent from Britain.
So peers are bound to ask why this second Bill to effect the Rwanda scheme will be more effective than the first – and argue that the plan has never been endorsed by voters, since it wasn’t in the 2019 Conservative manifesto. And there could be trouble for the Government in the Commons, too. Parts of the Tory Left are against leaving the ECHR. It’s uncertain what they would make of proposals to disapply it.
All in all, the Bill may not make it through Parliament. If so, we will never know what the courts would make of whatever version of it the Government produces. At which point, the only options left to Sunak would be to drop the Rwanda scheme entirely (which he surely won’t do) or put it to the British people at a general election, either immediately or later.
This would be problematic for the Prime Minister for at least three reasons. First, because he won’t want the boats, which under this scenario he won’t have stopped, to take centre-stage in the campaign – not least because illegal migration is linked to legal migration, currently running at record levels, despite the Conservative manifesto stating that Brexit would allow a Tory Government to “get overall numbers down”.
Second, because of the position in relation to the ECHR and other international obligations. If the Government isn’t committed to “notwithstanding” measures (or some equivalent) in relation to the Rwanda scheme, Sunak risks Conservative backbenchers coming out for them during the campaign, and even in some cases for simply leaving the Convention altogether.
This could deliver a repetition of the 1997 general election campaign, during which no fewer than a third of Conservative candidates refused to endorse John Major’s “negotiate and decide” position on the Single Currency, and said instead that they were opposed to ever joining it. That might that be the only similarity.
For during that election, James Goldsmith’s Referendum Party put pressure on the Conservatives over Europe. Their equivalent on immigration at the next election could be a Nigel Farage-revitalised Reform Party, or some new Farageist venture, thrown together with the speed with which the Brexit Party was formed.
Finally, the Prime Minister will presumably not wish to risk seeing the Rwanda scheme – and any action on the ECHR that he proposes – thwarted at the ballot box not because of the merits, popularity or demerits of either, but because voters have simply had enough of the Conservatives, and so turn them out.
Sunak has a choice. He could do the minimum on legal migration – tweaking the present system to increase minimum salary thresholds to less than the £40,000 that Braverman pressed for, and limiting the number of family members that foreign social care workers can bring to the UK. And try avoid speaking about the subject at all. And plump for the “low fat” version of a new Illegal Immigration Bill.
If he takes that route, Robert Jenrick, who has been radicalised by his experience as Immigration Minister, may quit the Government. When Braverman was fired, Team Sunak said that she wasn’t a team player and that her outspokenness was damaging the policies she supported. It would be unable to make that claim about Jenrick, a long-time ally of the Prime Minister’s and a man who chooses his words carefully.
So such an approach would keep immigration in the headlines, with Tory backbenchers queueing up to demand more restrictive measures. Not to mention pressing for the ECHR and other international treaties to be disapplied in relation to the Rwanda scheme. Migration would stalk him as the next election approaches. Which is the last thing he wants.
There is no guarantee that the alternative would give him breathing space, but it has to be worth a try. As his interview with ConservativeHome last spring confirmed, Sunak is the third successive Tory Prime Minister with liberal instincts on immigration. Boris Johnson, Liz Truss (briefly) and Sunak himself have preserved and developed New Labour’s migration-reliant economic settlement.
Rather than ducking that record, the Prime Minister could confront it – owning up to mistakes and setting out a plan. Such a course would be consistent with a big speech setting out a rough timetable and costs for replacing migrant labour with domestic workers wherever possible (warning: it can’t be done on the cheap).
In the meantime, he would take up the Braverman/Jenrick proposals to almost double the minimum salary needed to gain a work visa; cap health and social visas and do more to prevent foreign students staying in the UK after their studies. It may well be that Conservative credibility on immigration is exhausted. But Labour are offering no convincing alternative. And one has to start somewhere.
There seems to be a consensus for much of this programme across the Parliamentary Party. By pursuing it, Sunak might get the breathing space that he will otherwise be denied. Rwanda is a tougher nut to crack. “Full fat” could cost the Government its Attorney General and see a revolt from the left of the party. “Low fat” could see a bigger one from the party’s right and activists.
Boris Johnson made Britain a pathfinder when he hit on the Rwanda scheme. For the foreseeable future, there will be mass movement into Europe, with its falling birth rate, from the Middle East and North Africa, with their rising ones. As Julian Brazier wrote yesterday on this site, other European governments, as populist parties threaten mainstream ones, are mulling offshoring and perhaps Rwanda-type schemes.
The debate about leaving the ECHR is only just beginning – and the Prime Minister could do worse, in the remaining time before the next election, than try to lead the international debate on out-of-date treaties and conventions, in much the same way that he is striving to do over artificial intelligence.
The logic of the Rwanda continuum from Johnson to Sunak – in the absence of any credible alternative scheme – is for the Prime Minister to settle on notwithstanding clauses or some equivalent. Yes, it would risk putting the ECHR near the front of the Conservative election campaign. But so, as we’ve seen, would the alternative, in ways that would help neither the Prime Minister nor anyone else. By Paull Goodman, Conservative home