Keir Starmer’s government has grudgingly accepted publicly something it has privately known for months: voters are deadly serious about what they see as uncontrolled immigration. Despite the best attempts of the Prime Minister to make vacuous promises to “smash the gangs”, they can no longer be fobbed off.
Labour’s real problem is that on immigration and human rights it has painted itself into a corner
This realisation has led to a flurry of announcements from the Home Secretary. Yvette Cooper has said that serious sex offenders will be automatically denied asylum. To prevent undesirables avoiding deportation on unmeritorious human rights grounds, Cooper has also promised “a stronger framework,” that would be “backed by Parliament,” and would require international law (meaning the European Convention on Human Rights, or ECHR) to be interpreted with an emphasis on “common sense”.
This is clearly a pre-local election charm offensive aimed at winning over wavering voters. It is also one that roundly deserves to fail, being both disingenuous and borderline deceptive. The difficulty is that whatever Cooper may say, existing human rights law in the shape of the ECHR system means she can’t deliver.
Automatic denial of asylum to serious sex offenders and their consequent deportation to a country likely to mistreat them will be difficult if not impossible to reconcile with our obligations under Article 3 of the Convention. As interpreted by Strasbourg, this article bars not only direct infliction of torture or inhuman treatment by government here, but also a deportation order which will lead to its infliction elsewhere. It is a racing certainty that any case where this happens will end up in Strasbourg.
The reassuring-sounding idea of government guidance to immigration judges about interpreting the ECHR with a measure of common sense is also problematic. For one thing, the ECHR is not the government’s to interpret. The very point of the Convention is that any decision on how to construe it lies not with the states signed up to it, but with the judges in Strasbourg. Those same judges are likely to take a pretty poor view of administrations that lean on their courts to interpret it in their own favour.
Domestically, this proposal is even dodgier. If guidance “backed by Parliament” means legislation, the government will have difficulty in certifying that any such law is in accordance with our commitments under the ECHR. There would also be a big danger of any legislation that did pass either being read down by by the judges to be human rights compliant – which would defeat the whole object – or becoming the subject of a mortifying declaration of incompatibility by the courts.
All these problems might be avoided, some might say, if we had not legislation but some kind of Parliamentary declaration instead. But this is obviously a non-starter. No judge, whether in immigration or any other area, will take kindly to what is essentially political pressure as to how to decide a case: they will quite rightly say that their job is to reach a conclusion based on the law of the land, rather than some non-legal guidance emanating from the government of the day.
Say it quietly, but the suspicion must be that Cooper knows all this already from her advisers. Her calculation is no doubt twofold. First, she hopes that ostensible toughness will win hearts and minds on 1 May, and that once the votes are safely secured she can relax. Secondly, in the longer term she may well envisage that if any measures she does take end up with a clash in Strasbourg which the government loses (as it probably will), she can then say that the government tried its best, but was defeated by forces beyond its control.
The government’s real problem is that on immigration and human rights it has slowly but surely painted itself into a corner. You can have effective immigration control, or you can have meticulous adherence to the ECHR and its court in Strasbourg. But you can’t have both.
Unfortunately, Labour is still showing a wilful blindness to this fact of modern political life. On the one hand, it wants to reassure its potential voters, who demand swift and effective curbs on immigration without being over-squeamish as to the consequences for individuals; on the other, its intellectual and Parliamentary wing remains wholly committed to the ECHR as an article of faith.
The two rightist parties, by contrast, have avoided this bind in their support for tougher immigration policies. Reform leader Nigel Farage has candidly embraced withdrawal from the ECHR. The Tories have not gone this far, but have still declined to rule it out.
In terms of logic and honesty with the electorate, Reform and Tory policy is streets ahead of Labour’s increasingly obvious attempt to peddle two irreconcilable points of view at the same time. Voters see this. The betting is that on May Day they will make their point blindingly clear in polling booths up and down the kingdom.
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