Will the government get its way over small boats and the European Court of Human Rights?

The Illegal Migrants Bill is primarily, for the moment, a matter for parliament – but it won’t stay that way, writes Sean O’Grady

The home secretary, Suella Braverman (Jordan Pettitt/PA)

The home secretary, Suella Braverman, is to be given the ability to ignore attempts by judges at the European Court of Human Rights (ECHR) to halt migrant deportations from the UK (in some instances) as well as by judges in the UK under the Human Rights Act.

Fresh amendments to the Illegal Migration Bill are being tabled to that effect, while there are also efforts being made to allow ministers to disregard local planning procedures in order to build more migrant camps on government property, such as disused military bases.

Why is the government doing this?

Last year, the European Court of Human Rights granted an injunction – via its rule 39 – that effectively grounded a flight sending asylum seekers from the UK to Rwanda. This was widely repeated and seen as a defeat to the government. There was much outrage in certain circles.

Braverman told reporters on her recent trip to Rwanda that she was “encouraged” by “constructive” talks with Strasbourg to overhaul court injunctions. The government requested a higher threshold for any rule 39 injunction on attempted deportation flights and is now enshrining it in law anyway. It is ambiguous, however, and there is some legal “wriggle room” around the home secretary’s discretion to disregard rule 39 decisions, in UK courts and the ECHR.

The changes are also being made because public opinion (arguably) is demanding it and, more to the point, Braverman wants it and she’s being backed by about 60 Tory rebels. Most of whom, like Braverman, would be happy to ditch the UK’s membership of the European Convention on Human Rights in any case. Without these new changes the bill faced possible defeat in the Commons, and one of the flagship pieces of legislation for the Sunak administration would have been lost. That, in turn, would have added to the impression of a government losing its grip.

And will they get to build the new migrant detention centres?

One way or another, yes. The courts could agree that Braverman is entitled to declare a “state of emergency” over small boats crossing the Channel, and can therefore ignore planning procedures and local authorities such as Braintree (currently taking legal action to prevent a new migrant centre being established in its area).

Alternatively, should that battle be lost, the Levelling-up and Regeneration Bill would grant Michael Gove the authority to override local authorities where projects “of national importance”, such as migrant camps, are concerned and being constructed on crown land.

However, all of these moves are themselves subject to further court actions and to local and national political pressure. The proposal to convert RAF Scampton in Lincolnshire, home of the Dambusters, into accommodation for refugees has proved especially controversial.

Given the practical, political and legal obstacles, it’s unlikely new migrant centres will be completed by the time of the general election. The ex-barracks that have been used in the past have been found to be unsuitable.

So will the government get its way?

The Illegal Migrants Bill is primarily, for the moment, a matter for parliament. Ministers can expect continuing opposition in the House of Lords, from a variety of sources, and the process of prevailing over opponents in the upper house, who will table their own amendments, will take time. However, the signs are that the latest concessions to the right of the Tory party will mean that it will eventually get royal assent and become law. That said, the Tory whips will still have to cajole those on the other side of the argument to back the bill.

Even if the bill is passed, the obvious clash with international law and the provisions of the European Convention on Human Rights may be tested by judicial review in UK courts and the court in Strasbourg.

Why doesn’t the UK just leave the European Convention on Human Rights?

That would be the more honest and open way of going about things, and evading the obligations of the convention that ministers find irksome. By the same token, it would also be a more embarrassing way of proceeding, given that only Russia and Belarus are outside the convention.

Even so, some Tories certainly wish to; equally, the prospect appalls others, given that the UK was a founding signatory in 1951; and much of the drive to secure the convention after the atrocities during and before the Second World War came from Winston Churchill. Renouncing membership would certainly end any and all migrant appeals to the court, and would also make British ministers’ lives easier on this policy – but there would be new problems elsewhere.

Just leaving the convention would not only leave the UK in uncomfortable company, though. It would also potentially put the UK in breach of the EU-UK Trade and Cooperation Agreement and the Good Friday Agreement. Even if it did not, it would cause friction with Brussels and Washington, with deleterious consequences for British diplomacy.

Will it help stop the boats?

Only if refugees and economic migrants regard the Rwanda policy as a real deterrent because the new law might make flights to Kigali more of a certainty, and eventual settlement in the UK less certain.

On the other hand, if people are desperate to get to the UK, they may simply decide to try to make the crossing in any case. But instead of surrendering themselves to Border Force, they would instead seek to become part of the shadow economy, without the authorities being aware of their existence. The Rwanda policy isn’t so much of a deterrent to making the crossing, but it is a powerful deterrent to getting caught.