Editorial: Lawyers right

Dominating the headlines as I write is the UK Government’s Illegal Migration Bill, which embodies a flagship policy of the Prime Minister as well as the Home Secretary.

The issues surrounding the treatment of those seeking sanctuary in this country for whatever reason are not new. Nor, sadly, are the questions around the very legality of the Government’s approach, not to mention the terms in which the debate is being conducted, including by people in Government who should know better.

Starting with the tone of the debate, we are witnessing once again cheap jibes about “lefty lawyers”, not least from the Prime Minister himself. Sitting in the same category as the Home Secretary’s gratuitous slur against senior civil servants as well as lawyers, this belittling of the rule of law casts him in as poor a light as his recent predecessors. Members of the profession should continue to make it clear, individually and collectively, that such language is wholly unacceptable.

As respects legality, the Government is clearly determined to test the boundaries. On the one hand Suella Braverman insists that the bill has been “rigorously tested” by her lawyers; on the other, on its face she is “unable to make a statement” that in her view its provisions are compatible with the Human Rights Convention, but the Government wishes to proceed with it anyway.

Rights under that Convention are not the only international obligations at issue. In the words of the UN High Commissioner for Refugees, the disabling of those arriving in small boats from claiming asylum “would amount to an asylum ban – extinguishing the right to seek refugee protection in the UK for those who arrive irregularly, no matter how genuine and compelling their claim may be, and with no consideration of their individual circumstances”. That despite the fact that two thirds of those who come in this way have to date been granted asylum.

And what is to happen to these people? Unless another country can be found to which the UK is able to send them, it appears that they will simply be kept in indefinite detention. Through its approach to Brexit the Government has burned its boats (pardon the expression) as regards returning them to an EU member state, and it is not credible, despite the Home Secretary’s protestations to the contrary, that arrangements such as the Rwanda deal can cope with the numbers involved, even if they are finally put into operation.

It appears that despite restrictions in the bill, there does remain some scope for a detained migrant to challenge their detention via the courts, and for that reason the Government considers the provisions are compatible with the ECHR right to liberty. This leads commentator Joshua Rozenberg to remark: “If the Government wants this bill to deter illegal migrants, it must hope they won’t read the small print.”

Lefty or otherwise, the involvement of us lawyers is far from over.