The Prime Minister is understood to be edging towards legislation that would allow ministers to ignore the European Convention on Human Rights (ECHR) with regards to asylum, without leaving the treaty.
It is the option being pushed by Robert Jenrick, the immigration minister, who had a meeting with the Prime Minister on Wednesday to try to hammer out a solution to get the Rwanda plan off the ground.
Mr Sunak is said to be still some considerable way from agreeing the approach, dubbed the “full-fat” option, which has also been backed by the former home secretary Suella Braverman and more than 20 MPs on the Right of the Conservative party.
The Bill is due to be published before Christmas and potentially as early as next week.
A No 10 source insisted: “Nothing is decided, everything is still on the table.”
Speaking in Dubai at the Cop28 conference, Mr Sunak said the Rwanda plan was “crucial” to solving the migrant crisis but refused to say whether he was willing to take the most extreme measures in order to push the plan through.
He insisted he was “completely confident” that everything the Government was doing complied with the UK’s international obligations. “I have been through this in great detail and I am confident of that fact,” he said.
“Now I want the next stage of this, for us to bring forward legislation to make it unequivocally clear, and Parliament will be able to confirm that, that Rwanda is safe for the purpose of operationalising this scheme and thereby making sure there are no more domestic blockers to the proper functioning of this scheme.”
The Bill will declare Rwanda safe for asylum seekers and enshrine in law a new treaty designed to answer the criticisms levelled at the policy by the Supreme Court when it ruled the scheme unlawful.
‘Full-fat’ option would allow Government to ignore ECHR
No 10 is considering two additional options. The first, the so-called semi-skimmed option, would disapply only the UK’s Human Rights Act in asylum claims. However, this would not prevent challenges by individual migrants.
The second, “full-fat” option would go further and remove the right of judicial review and include “notwithstanding clauses”, which would allow ministers to ignore the ECHR in the area of asylum without leaving the treaty.
Adopting the so-called “full-fat” option for the Rwanda law would divide the party with almost 30 Tory MPs on the Left understood to have warned Mr Sunak that they would oppose such a move.
Victoria Prentis, the Attorney General, is understood to have previously warned that the Lords would likely block the Rwanda bill if the Government tried to circumvent the ECHR.
But sources said she is keeping her advice to the law rather than any political handling of the Bill. “She is working very hard on the Bill and the treaty,” said a source.
Alex Chalk, the Justice Secretary and a strong supporter of the ECHR, is said to be keeping his counsel until he sees the finalised legislation.
James Cleverly, the Home Secretary and also a supporter of the ECHR, told MPs this week he was looking for a Goldilocks option for the law, meaning it would get through the Lords but be robust enough to get the flights off to Rwanda.
‘Significant opposition inside the Conservative Party’
One senior MP from the One Nation group of backbenchers warned: “There would be significant opposition inside the Conservative party to that [“full-fat”] option let alone what would happen in the Lords.
“One assumes the Labour party and SNP would oppose that in the Commons. They would have difficulties in the Commons and I think there would be almost no chance of a Bill like that getting through the Lords.
“It is too late for the Parliament act [rarely used legislation that enables the Government to overrule the upper house]. It was not in the manifesto so the Lordships would feel justified to block it.”
However, the MP said they would consider the compromise “semi-skimmed” option of disapplying the Human Rights Act although they warned “it would be poured over.”
Lord Carlile, the Government’s former independent adviser on terrorist legislation said there was “nil, nada, no” chance of a Bill getting through the Lords if it allowed an ECHR opt out on asylum cases.
“This has become an electoral issue not an issue of principle at all. The House of Lords will fight every inch of the way. Doing any of these things doesn’t get them off the litigation hook. Individuals will bring cases after case after case,” he said.