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Without Braverman, which way will Sunak go on the ECHR?

The Home Secretary has been evicted. Credit: Getty

November 13, 2023 - 10:00am

Suella Braverman is out, but she leaves behind a massive and immediate problem for Rishi Sunak: what to do if the Government’s plan to send asylum seekers to Rwanda is judged to be illegal?

The Supreme Court is due to rule on the matter this week and if the verdict goes against the Government, then its immigration policy — and especially its pledge to stop the small boats — will be thrown into confusion.

According to Dan Hodges in the Mail on Sunday, Braverman’s solution was to respond with a snap election, thus bypassing the judges to take the Government’s case to the people. Apparently, the idea has some support in Downing Street.

There’s a parallel here with the run-up to 2019 election, which also featured a Supreme Court decision — on whether it was legal for the government to prorogue Parliament in an attempt to break the Brexit deadlock. The Court ruled against — a decision that Remainers foolishly took to be a famous victory. In fact, Boris Johnson used it to argue that the establishment would do anything to block Brexit, while he would do anything to get it done. The result was to rally the Leave vote behind the Conservatives.

Could the Tories pull off the same trick again? Immigration is an adjacent issue to Brexit, so might it inspire a similar win? Not a chance.

For a start, it’s doubtful that voters are ready to focus on immigration right now. Recent polling from More in Common shows that the cost of living is their top issue by a wide margin, followed by the NHS and then climate change. “Asylum seekers crossing the Channel” is only the fourth-placed issue. What’s more, the Sunak government, with its bizarrely random policy agenda — e.g. compulsory maths, scrapping HS2 and cracking down on pedicabs — has not laid the groundwork for a single-issue snap election.

But the biggest problem is that even if voters were minded to focus on migration — and specifically the small boat crossings — there’s no obvious reason why they would reward the Conservatives.

In 2019, there was a very good excuse for why so little progress had been made on Brexit: there was a Remain majority in the Commons that obstructed the Government at every turn. For Leave voters, the case for a Conservative majority was clear. But having won that majority — and a mandate to take back control of our borders — voters can only look at the record of the last four years and wonder why the boats are still coming. Why can’t a government that placed an entire nation under house arrest stop the people smugglers?

It’s no use ministers blaming obstructive elements in the Home Office or the judiciary — not when the governing party has the numbers and the mandate to take back control of the British state. In these circumstances, running to the electorate to seek a second mandate looks pitifully weak. 

Instead of the triumph of 2019, such a move would invite the humiliation of February 1974. That was when Edward Heath, beleaguered by striking miners, fought a snap election on the theme of “who governs Britain?” “Obviously not you!” was the voters’ answer. Heath was booted out of office, never to return.

Of all the ill-judged things that Sunak could do now, the stupidest would be to ask the same question. 


Peter Franklin is Associate Editor of UnHerd. He was previously a policy advisor and speechwriter on environmental and social issues.

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Charles Stanhope
Charles Stanhope
8 months ago

How simply pathetic!
A minute amount of pressure from the ‘great and the good ‘ of Quislington, and Sunak buckles immediately.

No wonder we conquered India with such consummate ease!

ps. Just heard the terrible news that Cameron, that simply odious ‘plastic’ Tory has rejoined the Cabinet!
Can it get any worse?

Last edited 8 months ago by Charles Stanhope
Matt M
Matt M
8 months ago

Very good Charles.

Andrew Dalton
Andrew Dalton
8 months ago

Just heard the terrible news that Cameron, that simply odious ‘plastic’ Tory has rejoined the Cabinet!

That’ll get the voters back out again. Just maybe not for the party they were hoping for.

Mr Sketerzen Bhoto
Mr Sketerzen Bhoto
8 months ago

Cameron, of course, partly responsible for the Mediterranean crisis.

Sayantani Gupta
Sayantani Gupta
8 months ago

Oh dear! Sunak is Punjabi and East African in origin! His father-in-law is famously Woke and Bangalore is thought of in many quarters as the” Quislington” of India along with South Bombay, Lutyens Delhi and Marxist Calcutta. All British inspired legacies!
The EIC won Bengal as they were welcomed as deliverers from the menace that was considered to be Siraj-ud- daulah.

Last edited 8 months ago by Sayantani Gupta
Charles Stanhope
Charles Stanhope
8 months ago

“What a parcel of rogues in a nation”, as Mr Burns said, albeit about somewhere even worse!

Susan Grabston
Susan Grabston
8 months ago

Well, I suppose Gillian Keegan’s long awaited advice on trans issues for schools could be a full adoption of Stonewall’s mandate.

Last edited 8 months ago by Susan Grabston
Julian Farrows
Julian Farrows
8 months ago

Suella Braverman – the only politician who dared speak the truth and now she is being punished for it.
“In a time of deceit telling the truth is a revolutionary act.”

Matt M
Matt M
8 months ago

I wouldn’t be surprised if Sunak is ousted if Rwanda is banned and the immigration figures (which I’m told are out on Thursday) are as bad as last time. We might be in another leadership contest starting in a fortnight’s time. Surely the winner would have to go to an immediate GE, presumably on a leave the ECHR and cut legal immigration ticket. Personally I think it would be popular with the electorate if, say, Kemi Badenoch was leader.

Last edited 8 months ago by Matt M
j watson
j watson
8 months ago
Reply to  Matt M

If Rwanda is ruled illegal that’ll be our own Supreme Ct and nothing to do with ECHR – it hasn’t got that far yet. The ruling should indicate the basis for any rejection, (if indeed it is rejected) and then the question may be can the Govt address those?
No doubt though some will get confused and conflate our Supreme Ct with the ECHR aided by some on the Right and media friends.

Last edited 8 months ago by j watson
Matt M
Matt M
8 months ago
Reply to  j watson

Not sure that is right J. The appeal was based the courts interpretation of the Human Rights Act which is in turn a domestic enactment of the ECHR rulings. As far as I know, even if parliament were to change the HRA, the fact that we are ECHR signatories would take precedence and the Supreme Court would still reject.
Or at least that is what I took from Jonathan Sumption’s arguments in the Spectator.

j watson
j watson
8 months ago
Reply to  Matt M

Supreme Ct may take account of case law precedent, and thus EHCR rulings may have influence, but I think a stretch to say the HRA is simply the enshrinement of ECHR conclusions overtime, if that is the suggestion.
But then if so maybe the issue is Govt proposes changes to the HRA and legislates accordingly. It could have done that. Then if ECHR blocked we’d be in different territory perhaps.
I just think we use the ECHR as the convenient classic bogeyman excuse. We might find some basic assurances have just not been forthcoming from Rwanda and the issue isn’t the principle of offshoring being illegal but more that we are being manipulated by who we are dealing with for their own ends. Supreme ct may just point out we haven’t gained the assurance we were supposed to. We’ll see Wednesday of course.

Matt M
Matt M
8 months ago
Reply to  j watson

You might be right about that. Let’s see what the SC rules on Weds.

Dougie Undersub
Dougie Undersub
8 months ago
Reply to  j watson

We can’t change the HRA in the way that is desired without either leaving the ECHR entirely or resiling from the relevant articles.
Remember, the first Rwanda flight was blocked by the ECHR after our courts had ruled it lawful.
On a slightly different point, why would Rwanda break the terms of the agreement by deporting someone? It’s a nice little earner for them.

j watson
j watson
8 months ago

The ECHR said the UK legal system should be given time to complete it’s assessment of the legality. (By that point only 7 asylum seekers were about to be flown to Rwanda). That’s what has been happening and it’s primarily about the UK Judicial system via the Supreme Ct deciding if the assurances sought from Rwanda and the Home Office have been delivered. The Ct of Appeal clearly thought they hadn’t but Govt and Rwanda had plenty of time to put that right since…you’d think.
The ECHR hasn’t said the offshoring is illegal, and I suspect it never will, esp as growing European debate about it’s potential role. All it said is you shouldn’t implement until your own Courts have completed their process. It’s quite possible that if the Supreme ct ruled all it’s concerns had been addressed the ECHR would go with that too.
So at the moment this is entirely with us.

D Glover
D Glover
8 months ago
Reply to  Matt M

The immigration figures and the small boats issue are two different things, because most immigration is legal and encouraged by the government.
If the Tories went to the country over immigration they’d be judged on the numbers, which are huge. Rwanda is a sideshow, albeit a humiliating one.

Matt M
Matt M
8 months ago
Reply to  D Glover

I think they would be judged on both numbers – legal and illegal. And it would be a damning judgement!

N Satori
N Satori
8 months ago

Recent polling from More in Common shows that the cost of living is their top issue by a wide margin, followed by the NHS and then climate change.

Oh really? Interesting that those are just the issues the MSM are most keen on discussing. The immigration issue is deeply embarrassing to Keir Starmer’s Labour party so reporting is best kept to a minimum lest that ‘certain victory’ be jeopardised.

Walter Marvell
Walter Marvell
8 months ago
Reply to  N Satori

Yes. Rwanda is a do or die issue for the political legitimacy of not just the Tories but the whole political system. If Rishi is defeated from afar by what is essentially a mix of flawed old multilateral refugee laws and European progressive human rights overreach then he and the Tories are toast. If your democratically elected Executive cannot pass laws to protect the integrity of our borders and demography it really is game over as it is the first duty of a State. Lets stop pretending! We will have reached the very nadir/zenith of the permanent 30 year Progressive State and the fullest expression of its open border, Equality and race ideologies, all paraded weekly on our streets.

Jeremy Bray
Jeremy Bray
8 months ago
Reply to  N Satori

The first problem is that the cost of living crisis is the result of matters outside the control of UK politicians such as the cost of oil or problems created by UK politicians like the lockdown response to covid and the rise of pretend to work from home, the failure to role out a nuclear solution to the supposed climate crisis and our reliance on foreign oil and gas energy. A proper grip on the NHS has not been taken by the Conservative Party by prioritising the training of nurses and doctors over administrators and Diversity officers in a service that is considerably more diverse than the country as a whole.

The second problem is that the only realistic alternative to the useless so-called conservatives is a party dedicated to making all the problems that have resulted in the cost of living crisis even worse. They will reward the army of woke bureaucrats that are in place as a fifth column frustrating any slight attempt by the Conservatives to reform matters and will be delighted to increase the highest level of taxation still further to post-war levels for the “rich” blaming the Conservatives plausibly for their mismanagement while doubling down on the issues that have brought us to this pass. They certainly won’t be battling to reduce immigration from parts of the world whose culture is alien to that which prevailed but a few decades ago in the UK.

Small choice among rotten apples.

Matt M
Matt M
8 months ago
Reply to  N Satori

Looking at the More in Common link, it appears immigration wasn’t offered as an option for respondents. The only immigration related thing was Small Boats. I suspect that if it had been offered it would have been the third highest issue after the economy and health, as it is in every other poll.

N Satori
N Satori
8 months ago
Reply to  Matt M

Typical poll manipulation tactic then.
It may be a bit of a stretch but I believe that a Labour government, in its inevitable capitulation to the pseudo-humanitarian open-borders ethos will find they have facilitated an unmanageable refugee accommodation crisis and one of their solutions might be to pressure any home-owner with spare capacity to take in a migrant or two. Many such home-owners would be traditional conservative voters and there have already been suggestions that such people enjoy far more than their fair share of living space.

D Glover
D Glover
8 months ago
Reply to  N Satori

I recommend Lionel Shriver’s excellent Should we stay or should we go?
In one chapter she imagines a future when illegals squat in the houses of elderly homeowners and the authorities are too overwhelmed to do anything.
Is that too far-fetched? Well, PM Starmer is coming in a year’s time with his policy of ‘safe & legal routes for refugees’. So what happens when all the hotels are full?

M Doors
M Doors
8 months ago

And he brings David Cameron into the cabinet. Guess it was getting lonely being the only cuckoo in the nest, ‘eh Sunak ?

N Satori
N Satori
8 months ago

David ‘heir-to-Blair’ Cameron as home secretary!? What next – will Blair himself be invited to join the Conservatives in order to create that elusive political chimera, a government of national unity?

Michael Kellett
Michael Kellett
8 months ago
Reply to  N Satori

No, but he may well be joining the new Labour regime next year, along with Mandelson.

Walter Marvell
Walter Marvell
8 months ago

Nonsense to say climate change is higher priority than illegal and mass immigration of 1m plus! The author looks so credulous believing the utter tosh served up by those sbake oil pollsters! Get out more. Ask your friends!

Philip Burrell
Philip Burrell
8 months ago

“For a start, it’s doubtful that voters are ready to focus on immigration right now. Recent polling from More in Common shows that the cost of living is their top issue by a wide margin, followed by the NHS and then climate change.”
Really! You wouldn’t know that if you read Unherd every day.

Last edited 8 months ago by Philip Burrell
j watson
j watson
8 months ago
Reply to  Philip Burrell

Indeed. You’d think it was some gender identity student debate that folks are far more worried about than paying their bills or getting that crippling pain from their hip sorted.

Graham Ward
Graham Ward
8 months ago

I suspect with the appointment of Cameron as Foreign Secretary that there’s been a heads up on the Supreme Court judgement.

Emmanuel MARTIN
Emmanuel MARTIN
8 months ago

BraverMan is also the braver woman.
Tories stand for her against Quisling