Damien Green labels former home secretary’s controversial proposals ‘unconservative’
The government has not published the “emergency legislation” on Rwanda promised by Rishi Sunak, but the PM spoke on Wednesday about what he wanted it to achieve. Sir Jonathan Jones, who was head of the government’s legal department until he resigned over an attempt by Boris Johnson’s government to ignore international law (Suella Braverman was attorney general at the time), has written a good briefing for the Institute for Government on what Sunak is trying to do, and whether it will work.
Jones is a bit more positive about what a law saying Rwanda is safe might achieve than Lord Sumption, the former supreme court judge who rubbished the idea earlier this week, but he is still sceptical. Here is an extract.
The idea of declaring Rwanda to be safe is a startling one. It would amount to parliament making an assessment of fact (about arrangements in Rwanda) which is directly contrary to the recent findings of the supreme court. Would it work though? I think it might, as a matter of domestic law. Ultimately, one would expect the (UK) courts to give effect to such primary legislation, if drafted sufficiently tightly and unambiguously. That would (probably) close off challenges in the domestic courts.
Even if the bill did not explicitly exclude the application of the Human Rights Act, under that act the courts cannot strike down primary legislation. They can only make a declaration of incompatibility under section 4, leaving it up to the government to decide how (if at all) to respond.
The fundamental point that we need to address is, as my constituents reminded me on the doorsteps of East Cleveland last night, that we need, as a state, to be able to police our borders. And it cannot be the case that our human rights framework effectively renders that undeliverable, nor that it effectively is able to deny a sovereign parliament the ability to do what people want it to …
Nobody, as the prime minister rightly said this week, when the convention was drawn up in ‘51, thought that it meant the UK should not be able to deport people who come here without permission.
With respect, I don’t accept that presumption.
I believe that a sovereign parliament, which is ultimately, of course, the supreme democratic embodiment of the land, going through all the checks and balances of our constitution, that is to say both the Commons and the Lords, is entitled to say that, for the specific purpose of enabling a law which it has just passed to be delivered, is entitled, in extremis, to say that certain sections of other laws are disapplied for the purposes of ensuring that that is delivered.
If it becomes clear that we cannot deliver this policy within the constraints of what the Lords would allow, then that is that is an issue which I think we could take to the country, and quite quite reasonably so.
This is not a sort of a trivial issue, or an incidental ones, in the eyes of millions of voters. This is fundamental to their confidence, specifically in this government, but more broadly in the ability of the British state to govern Britain.