The Prime Minister may contend that any blessing in disguise seemed effectively disguised: the dismissal of his flagship asylum policy as unlawful, the day after his former Home Secretary sent her angry post-sacking tirade accusing the Prime Minister having no serious Plan B for this outcome.
Yet the politics of a court defeat will by next Autumn suit the Prime Minister rather better than a victory. The prize of winning in court would have been the chance to demonstrate whether or not the Rwanda scheme would actually stop the boats.
Sunak – as Chancellor when Priti Patel proposed the scheme – was initially the strongest voice inside government saying that it was expensive, ineffective and of questionable legality, correctly pointing out that deporting just 300 people would have a marginal effect.
Since running for leader, Sunak has ceased to point out this inconvenient truth, believing it is a political necessity to show his party that he will make every effort to try to make it work. But it will help him that the Rwanda deterrent effect is highly unlikely now to ever be put to the test before the General Election, despite the frenetic quest among Conservative MPs over the last 48 hours to find the rescue remedy that can bring the scheme back to life.
The Conservative consolation prize for the Conservative is that they get a simpler election argument. Rather than trying to implement the plan, there will now be a simpler political plan over who is blocking what can still be claimed to be the hypothetical solution to the challenge of small boats.
Tory asylum policy seems designed to set up an argument with Labour, Lords and the Courts
The simplest if stupidest plan was proposed by Conservative party vice-chair Lee Anderson. “Ignore the laws”, he said, and send the planes to Rwanda anyway. Even if daft enough to try, ministers cannot direct civil servants, the police or the armed services to act outside the law in contempt of court.
The Prime Minister defended Anderson’s opposition to the rule of law as demonstrating the strength of feeling on the issue. Since the rule of law is one of Ofsted’s “fundamental British values” that schools must inculcate with future citizens, we curiously hold the primary and secondary school children in Ashfield to a higher standard than their MP.
Sunak is proposing a new UK-Rwanda Treaty – and new Emergency Laws that might prevent the Courts intervening. It is important to be clear about what the argument after the Court defeat is.
What the UK Courts say is that a deal of this kind – whether it is a good policy or not – would be lawful if the UK government made such a deal with a “safe third country”, which had a functioning asylum system, capable of acting on the refugee convention in principle and practice. The proposed Emergency Law would be to propose it must be possible with an unsafe country too, whatever the Courts say.
So that seems designed to set up an argument with Labour, the Lords as well as the Courts over who is blocking the plan. Any “peers against the people” argument is weak in this case. The Lords would have to defer to an elected government acting on a manifesto commitment. But the government made no hint of any Rwanda plan, any offshoring plan, any idea of disapplying the refugee convention and the European Convention in its manifesto.
The public was already split on the principle of a Rwanda-style scheme – when it seems to polarise control and deterrence against compassion and refugee protection. But there has long been majority scepticism about whether it would happen or deter – and so whether it was a sensible use of hundreds of millions of pounds.
Supreme Court ruling boosts Labour case the Rwanda plan is a costly gimmick
How should the opposition respond? Labour is often anxious about migration in general – and small boats in particular. But the government defeat makes the opposition’s argument that Rwanda is an expensive gimmick that is not going to happen looks stronger.
It will be important to challenge the idea that Rwanda is a deterrent – and to propose that the time, energy and money should be spent on doing things that can work, clearing the asylum backlog, spending the millions wasted on hotel bills more efficiently, and pursuing returns deals for those whose claims fail.
Despite Labour’s anxieties, immigration and small boats are simply a much higher-stakes electoral issue for the Conservatives than it is for Labour. Immigration has returned to being the highest priority issue for Conservative voters, while it has never yet made the top six priorities for Labour voters during this parliament.
It is the issue on which the government has the least public confidence – so turning it into an election issue risks reminding voters of the failure. The Conservatives are anxious about Reform – but may be driving support towards them rather than winning it back.
Labour’s plan can win over liberal and conservative supporters alike
🚨NEW WORD CLOUD🚨
We asked the public “what phrase would you use to describe the Conservatives policies on immigration?”
— Labour Together (@LabourTogether) November 15, 2023
Labour’s own plan to control Channel Crossings has the potential – if voters hear about it – to be rather better received than the Rwanda plan, as new YouGov polling conducted by Labour Together shows. Labour’s plan is approved by 59% to 19% – and by 73% to 12% among Labour’s current winning electoral coalition of support, showing that it can reach across liberal, balancer and more socially conservative swing segments. Asked to choose, the Labour plan is preferred to the Conservative package by a 42% to 27% margin. The Conservative plan, strikingly, generates a better public reception once the polarising Rwanda plan is removed from it.
There is uncertainty within Labour circles about how much emphasis to place on its constructive alternative – particularly the idea that seeking to negotiate a routes and returns deal with Europe – after the initial effort to do so was caricatured by the government as an EU quota scheme.
Labour’s challenge on asylum will get harder once it navigates the politics of the election year. It is what Labour can actually do once it inherits the challenge of how to rebuild a broken asylum system that delivers neither control nor compassion that will determine whether it can restore public trust in how we manage asylum in Britain.