By Gavin St Pier
‘I AM unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights…’ So begins the preamble to the UK’s latest flagship anti-small boats legislation. What does it mean? In short, the Home Secretary, Suella Braverman KC, cannot provide the sign-off that the Bill is compliant with the European Convention on Human Rights (ECHR). Back in Tony Blair’s day, when UK governments still championed human rights, they enacted the Human Rights Act. This requires that all UK legislation was human rights compliant, hence the required statement that Braverman can’t provide.
The ECHR is nothing to do with the European Union. It’s a 1950s international treaty, largely driven and written by the post-war UK government of the day. The irony that the word ‘illegal’ has been included in the very name of an illegal piece of legislation must have been overlooked by the UK government’s communications team.
This is not the place to wade in on the pros and cons of the UK’s latest policy to deter illegal migrants. Plenty of column inches (or centimetres if you prefer) have and will be written elsewhere by those more qualified than me to comment. My interest is piqued by what it means for the Channel Islands. If you thought, ‘this is a UK issue, so doesn’t affect us,’ you’re wrong – big time.
By clause* 30 of the Bill, the definition of ‘UK’ is extended to include us, with the effect that someone landing here illegally would be ineligible for citizenship. This makes perfect sense from a UK policy perspective. If all that the people traffickers needed to do was shift their operations from Calais to Normandy, in the knowledge than any rubber dinghy landing here would still enable its bedraggled survivors to claim asylum and potentially begin a route to British citizenship, then their business model is assured, albeit it with us becoming a massive loophole in the UK policy. That’s the reason that clauses 30-36 of the Bill purport to be given ‘direct effect’ here. In other words, if this Bill becomes an Act, the Houses of Parliament in Westminster will have legislated for us. Are your alarm bells ringing yet? Well, if we’ve consented to legislation having direct effect, that’s fine. We have precedents for consenting to odd bits of UK legislation to have direct effect, such as, for example, the law that covers the BBC licence fee. But in order to consent these days, the foundational laws of each island – the closest thing we have to constitutions – require that each Assembly agrees. Here’s the rub. Back in the day, when the UK was enacting the Human Rights Act, it wanted us to do the same. So we did. We passed our own domestic legislation, which means that if our Assemblies are asked to consent to an Illegal Migration Act being registered in the islands to give it direct effect, we will likely be advised by our Law Officers that they too cannot say the legislation is compliant. If the UK can’t, how can they? While Rishi Sunak might be able to whip his party’s parliamentary majority to ignore this non-compliance in order to deliver his government’s policy objective, will our Assemblies be similarly happy? And if they don’t, then we are in uncharted constitutional territory because our longstop provisions requiring local parliamentary consent have never before been used or tested in anger. That would almost certainly end with the Supreme Court being asked to resolve whether our longstop provisions work as we intended. And given you never want to ask a question you don’t know the answer to, that might not end well. But on the other hand, if the Assemblies did roll over and consent, their decisions to do so are just as likely to be challenged through the courts by those who would regard to knowingly legislate for non-human rights compliant legislation as an abhorrent – but more importantly legally – irrational decision. This has the potential to become an unholy mess. In fact, that’s an understatement: your alarm bells should be ringing off the wall by now. And yet our governments are silent. Why?
Firstly, they are probably trying to work out what’s going on. The islands have been consulted on earlier drafts of the legislation but all the hardcore (and legally controversial) bits on which they have been unsighted were clearly drafted in at the last minute. UK domestic politics may be at play. The Bill just may be the price that Sunak needed to pay to keep onside Braverman and others in the ERG (European Research Group), for the Windsor Framework with the EU on the Northern Ireland Protocol of the Brexit deal, signed just the week before.
Secondly, they might be hoping it all goes away – which it just might. While the House of Commons might be whipped into submission, getting the Bill through the House of Lords will not be easy. They are likely to amend out all the non-compliant bits of the Bill, creating parliamentary ping-pong with the legislation bouncing back and forth between the two chambers. Given the Salisbury Convention, peers will regard themselves as unbound and able to oppose the will of the Commons, given the Bill was not in the winning party’s 2019 general election manifesto. Then they can delay the legislation for a year, by which time the UK is bumping up against another general election anyway. And even if the legislation did get enacted, it will be subject to challenge through the courts. The political cynic in me thinks that the Tory party’s electoral strategists may want to create the conditions for another ‘people vs the elite’ 2019-style election that was so successful for them. This would run along the lines of, ‘if it wasn’t for those blasted unelected peers, the wretched out-of-touch judges and all that human-rights nonsense (deliberately conflating anything ‘European’ with the EU) with all their namby-pamby friends in the Labour Party, then we, the Conservatives, could stop all the small boats (and migrants) that are frightening you, the people.’
We’ve been here before, haven’t we? Back in 2018, the House of Commons went a bit rogue and off piste when it tried to directly legislate for us to have public registers of beneficial ownership. Back then our governments were very active and vocal in opposing this interference in our autonomy. The government of three Prime Ministers ago, Theresa May’s, saved the day by pulling the legislation before a vote. This is a much more serious threat than a bunch of backbenchers getting together to have a go at us. This is much more serious than the UK slipping in a ‘permissive extent clause’ into a recent Fisheries Act without our consent – at least they consulted us on that one. This is the government of the day, with a thumping majority, knowingly and actively leading the charge to directly legislate for us. To all intents and purposes, ‘citizenship’ is the closest thing that could be regarded as a ‘reserve’ issue on which our domestic autonomy is subordinate to the UK, without which we could create a back door to British passports. So, of course the UK have an interest in ensuring their policy is not undermined by us, but proper process, precedent and convention must still be followed. That requires consultation and, ultimately, our consent. This ought to be a red line for us, because if we obfuscate our way through, it will happen again. A precedent will have been created. Civil servants, legal drafters and legal advisers will not forget, even if the politicians change and move on. This is the issue I’ve written about, fearfully, a number of times in this column – and now it is with us. The temptation for our leaders, acting on advice, will be to play it low key in the reasonable expectation that it will go away. I’d play it differently. I’d use this as the opportunity, a case study, to open the doors to the conversations that the UK won’t want to make time for, but that we so clearly need to have, in order to avoid the points of conflict that are so stark in this case. That need not involve angry public tub-thumping, which should be last resort. This is a time for discrete but firm diplomacy, using every line of communication we have. Let’s hope that is what is happening behind the scenes, and we emerge with a more secure, less ambiguous relationship with Westminster and the UK government, which properly reflects our constitutional relationship with the Crown, as part of His Majesty’s oldest dominions.
*when a legislative ‘Bill’ completes all its stages and becomes an ‘Act,’ ‘clauses’ become ‘sections’
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Gavin St Pier is a Guernsey politician. He previously served as the President of the island’s Policy and Resources Committee.
