Civil servants are trying to block Rishi Sunak’s legislation to deem Rwanda a safe country to deport asylum seekers to, it has been claimed.
Sources have claimed that Whitehall feels “institutionally bound” to raise concerns about proposals to disapply elements of the Human Rights Act from the Rwanda scheme.
It comes amid heated discussions in Government about how far the Bill should go, with Conservative MPs on the Right of the party claiming that the legislation will fail unless it also disapplies the European Convention on Human Rights (ECHR).
The Telegraph understands that Victoria Prentis, the Attorney General, has been opposing such a move, arguing that using “notwithstanding” clauses to circumvent the ECHR would be unlawful.
After losing at the Supreme Court last month, Mr Sunak wants to get deportation flights off the ground by passing legislation that will declare Rwanda a safe country.
The Government has also been negotiating a treaty with Rwanda that would commit the country not to deport asylum seekers to third countries – one of the chief concerns raised by the court.
The Telegraph understands that the treaty could be finalised this week, with the Home Secretary on standby for a flight to Rwanda to sign the deal.
However, debate is still ongoing about how expansive Mr Sunak’s legislation should be. Under one plan – dubbed the “semi-skimmed” option – the UK’s Human Rights Act would be officially disapplied in relation to the safety of Rwanda.
Sources have claimed that ministers are facing resistance in Whitehall to such a policy in the form of questions repeatedly being raised around its legitimacy, conflicting advice and attempts to dissuade ministers.
The Prime Minister is expected to finalise his plan by the end of Monday, meaning that it could potentially be signed off by ministers at Tuesday’s weekly Cabinet meeting.
However, senior Tories have expressed concerns that if he chooses the semi-skimmed option it may be too “limited” to resist legal claims against deportation.
Some MPs on the Right of the party are pushing for a “full-fat” option – believed to be supported by Robert Jenrick, the Immigration Minister – that would use notwithstanding clauses to set aside the whole of the Human Rights Act, the ECHR and other international conventions.
But this hardline approach is being resisted by the Attorney General and Tory centrists.
‘The most appallingly adverse reaction’
The Telegraph understands that Mrs Prentice has argued that notwithstanding clauses would be unlawful and previously blocked them when they were proposed by Suella Braverman, the former home secretary.
Mrs Prentis is also strongly opposed to the idea of withdrawing from the ECHR altogether.
In conversations with Conservative MPs she has said that leaving the ECHR would require the Government to reopen the Northern Ireland Protocol Brexit deal, with any new agreement with the EU requiring every member state to ratify it.
A former cabinet minister on the Tory Right claimed that Mrs Prentice was “wrong in law” on the use of notwithstanding clauses.
The MP said there would be “huge concern” if Mr Sunak’s Bill did not include the clauses.
“If we can’t utilise the Rwanda policy – and we won’t be able to if we don’t block off all the obstacles through notwithstanding clauses – then there will be the most appallingly adverse reaction from Conservative voters,” they said.
“Bearing in mind that we’re now on average more than 20 points behind in the polls, I think that lots of MPs simply won’t put up with that.”
Another senior Tory warned that Mr Sunak faced the prospect of a leadership challenge if he was seen to deliver weak legislation that was unlikely to fix the problem or reassure the public.
Concerned MPs on the Right were generally backbenchers rather than ministers and “more likely to do something” than centrist parliamentarians nervous about changes involving the ECHR and Human Rights Act, they said.
Writing for The Telegraph, the veteran backbencher Sir Bill Cash – a proponent of notwithstanding clauses – said the issue was about “the will of the voters and their trust in government” and that the public would “not excuse failure on illegal migration in yet another Bill”.
On Saturday night, Labour said that they believed that activity in the Channel on Saturday meant that the number of people crossing in small boats was likely to have met or exceeded the 28,526 recorded in 2021, making it the second highest year on record.
Yvette Cooper, the shadow home secretary, said: “Rishi Sunak claimed he would stop the small boats this year but instead this weekend’s figures are set to make it the second highest year of crossings on record, the Tory asylum chaos is continuing and he has broken another promise he made to the British people.
A source close to Mrs Prentis said she was focused on making the policy work and getting flights off the ground to Rwanda.
They indicated that the Attorney General would wait to see what any clause said before making a judgment about it.
‘That’s not resistance, that’s the job’
Dave Penman, the general secretary of the FDA civil servants’ union, hit back at claims that Whitehall mandarins had been obstructing the Rwanda plan.
He said: “The job of a civil servant is to give evidence-based frank advice to ministers and if ministers have got policies which will create difficulties, may fail legal challenges, then it’s the job of a civil servant to give that advice.
“That’s not resistance, that’s the job that they’re there to do.”
He went on: “It’s not civil servants that have stopped Rwanda happening. It’s the courts.
“We’ve just got people pointing fingers and trying to blame civil servants for the fact that their policy has significant flaws in it.”
He said the idea that there was “some kind of resistance movement within the Home Office” was “nonsensical”. “You wouldn’t go and work in the Home Office unless you knew you were going to be dealing with some pretty controversial things,” he said.
Mr Penman said briefing against civil servants by ministers was an “act of desperation”.
“What it shows is their policy is failing and the failure of their policy they want to blame on someone,” he added.
“If a civil servant does resist – genuinely resist and doesn’t do what they’re asked or refuses to implement a government decision – then name them.”