Priti Patel’s Rwanda policy may be unethical, but is it really ‘unworkable’?

There were people who thought the deportation policy was designed to fail, intended only as right-wing gesture politics

What mattered for Patel was getting one (mostly empty) plane to Rwanda (Getty)

Yvette Cooper, the shadow home secretary, said the plan to send asylum seekers to Rwanda was “unworkable, unethical and expensive”, and when the plane failed to take off on Tuesday, it seemed she had been proven right about the “unworkable” part. Many of Priti Patel’s critics said, when the policy was first announced, that they thought the flights would never happen.

But the significance of what happened this week is that they, and Cooper, were wrong about the workability of the policy. The flight very nearly did happen, and it was only the unexpected injunctions from the European Court of Human Rights (ECHR) that stopped it. The UK Supreme Court had considered the case for an injunction on exactly the same grounds and reached the opposite conclusion a few hours earlier, so there was no certainty about the ECHR’s decision.

If the anonymous ECHR judge had decided differently, the seven asylum seekers who were already on the plane at Boscombe Down would be in Rwanda now, and Patel’s policy would look very different. More British people would probably still oppose the policy than support it, as an opinion poll found last week, but part of the unworkability argument against it would have fallen away.

It might have been that the unwilling passengers would have returned to Britain next month, when the Supreme Court is set to rule on whether the policy itself is lawful. That was the condition on which the court decided not to grant a temporary injunction: that the home secretary promised to use her “best endeavours” to get the asylum seekers back if it turned out that they shouldn’t have been sent.

But what mattered for Patel was getting one (mostly empty) plane to Rwanda, with a number of asylum seekers in it that was larger than zero. Her attempt to deter people from crossing the Channel in small boats would have become significantly more convincing.

So when people said that the policy was designed to fail, and had been dreamt up merely to posture to a right-wing audience in the Conservative Party, or to a Brexity tendency among the voters, I don’t think that is right. Patel and Boris Johnson thought there was a prospect that the policy could work, and they may still be proved right – however uncomfortable that may seem.

There were good reasons for thinking it wouldn’t work. Denmark, for example, has had a similar deal with Rwanda, but has yet to send a single asylum seeker there. Israel had a deal in 2014 that involved some refugees actually going to Rwanda, where they generally suffered terribly.

It is possible that, when the Supreme Court considers the policy in July, it will rule against it so emphatically that the government will be unable to go ahead. But it may, on the other hand, allow it, or rule against it on narrow grounds that can be fixed.

Meanwhile, Dominic Raab, the justice secretary, is planning to legislate to give ministers the power to ignore ECHR injunctions in cases that have already been considered by the UK courts – a surgical legal strike that would probably not require Britain to repudiate the European Convention on Human Rights.

For all the fuss about the Johnson government’s willingness to tear up international treaties, it meekly accepted the ECHR injunctions this week, despite respectable legal arguments that it need not do so.

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This week reminded us that, despite the attempts of some hardcore Brexiteers to extend their argument against the EU to withdrawing from the Convention – a treaty drawn up by British lawyers long before the European Community, the predecessor of the European Union, came into being – the idea of fundamental human rights law is not such a constraint on democratic governments after all.

The British government has fought and won arguments with the ECHR before. Successive governments resisted an ECHR ruling that prisoners should be given the vote until the court gave in after 12 years. That was when Theresa May was prime minister. As home secretary, she succeeded in extraditing Abu Hamza to the US in 2012, and sent Abu Qatada to Jordan in 2013 (where he was acquitted and released by the Jordanian courts). Careful legal work, and deals negotiated with other countries, can get things done.

Patel hasn’t succeeded yet, and it may be that Cooper will be proved right that the policy is unethical, in the sense that it is contrary to human rights law as interpreted by the Supreme Court or the ECHR. But what the home secretary proved this week is that it is not necessarily unworkable.