10th November 2023
Even if the United Kingdom government wins on the lawfulness of the policy, it has already lost in respect of procedure
The conventional wisdom is that if the current Home Secretary is still in post on Wednesday, a Supreme Court defeat for the government may be the basis for the Home Secretary to resign and campaign for the United Kingdom’s departure from the European Convention on Human Rights, or something.
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Nobody outside the court will know the result in advance and so the hand-down will be a moment of drama and excitement.
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On balance, any legal challenge to “policy” – that is an approach to general political problems – is likely to fail.
For an entire policy to be quashed it would require that each and every possible application of the policy in any concrete situation must be unlawful – that there is nothing that can be done to save a decision in a particular case.
Courts are reluctant to do this – not least because policy is usually the province of politicians, and judges will not want to trespass.
And the current Supreme Court under Lord Reed often seems cautious in dealing with “policy” challenges.
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There perhaps are reasons why this particular policy may be unlawful in the round – and if it was not arguable that the policy was itself unlawful the Supreme Court would not have heard the case – but it would not be shocking if the Supreme Court sides with the government and holds that some applications of the policy may be lawful, subject to certain conditions.
And here is the nub of the situation, which many in politics and the media seem to be overlooking: the courts have already held that there are strict and onerous conditions in particular cases.
These conditions are so strict and so onerous, it may well be that few if any asylum seekers will be relocated to Rwanda, even if the Supreme Court rules that the general policy is legal.
Followers of this blog may recall posts about this at the time of the initial High Court decision and the Court of Appeal decision:
As this blog has before averred, the government can both win and lose a legal case at the same time.
And even if the government wins on whether the policy is lawful, the procedural protections already insisted upon by the courts in the application of the Rwanda policy will present difficulties for a Home Secretary after next Wednesday.
Whoever that is.
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I’m not a lawyer but I wholly agree with your clear and logical assessment of the legal questions.
However, I am very doubtful that Braverman will resign over a loss before the Supreme Court, nor that Rishi Sunak will sack her for campaigning to leave the ECHR. Either action would require these them to have principles encompassing the whole of the UK, not just their immediate circle of business associates.
Interesting opinion on the possibilities now available to the Government. Basically every which way but lose. However, the interesting outcome may well be how the Tory press spins this and whether the headlines want HR laws to be amended or dispensed with in the name of sovereignty and how that plays for the electorate.
Thanks for posting this… really valuable.
Whatever the result, whoever is Home Secretary, they will continue to maintain the fiction that the Rwanda policy will solve the small boats problem. They don’t want it to be solved because hating “illegal” asylum seekers is good for them. They want keep their supporters angry about it. It would be far cheaper and make more economic sense if asylum cases were dealt with quickly. Successful immigrants would help our employment shortages, unsuccessful ones returned. Opening up legal routes for asylum seekers to arrive by air would stop the trafficking trade, but can’t be accepted as they claim such an “soft” option would only encourage more to come. It’s all about presenting a tough attitude to the public will actually doing bugger all about the problem.
There will be no resignation of the Suella Bravaman, as she was sacked two days before the Judgement is expected over an article she wrote in The Times without No, 10’s approval. I doubt that James Cleverly, the new Home Secretary will be at all embarrassed, as he has already trumpeted the line that it is a priority to “stop the boats”.
Suella’s resignation letter was sent yesterday. It says “If we lose in the Supreme Court, an outcome I have consistently argued we must be prepared for, you will have wasted a year and an Act of Parliament…. you have failed to prepare any sort of credible “Plan B”… I wrote to you on multiple occasions there is no hope of flights this side of an election”.
Today, the judgment has been handed down – and the government lost.
Presumably Suella, as Home Secretary, will have seen the draft judgment. Did she take action in response to the draft judgment before the judgment was handed down? If so, is this contempt?
Obviously – not a “resignation” letter.