Britain’s small boats migrant crisis must be fixed
British human rights law is a mess. British immigration policy is a mess. British law itself is in a mess. The three are related.
Before looking for a cure, there are three basic points to keep in mind. The first is that everyone arriving on a small boat across the English Channel had already reached a safe country, prior to crossing. The UK Government’s position is that refugees should claim asylum in the first safe country they reach. Although we all enjoy teasing the French, no-one could argue that it is such an unsafe country as to justify an asylum seeker fleeing further in the hope of sanctuary. That said, could a case be made that parts of France are indeed unsafe, because the banlieues of Paris are full of illegal immigrants who hate their host country and regularly inflict violence upon its law-abiding citoyens? Let the bien-pensantry argue that out among themselves.
The second is that human rights are important. British subjects are entitled to assume that the rule of law will safeguard their persons and their property. As part of that protection, they ought not to suffer because illegal immigrants put pressure on public services and, far too often, commit crimes. In Britain, the purpose of human rights is to protect the British. Certainly, we should permit immigration, by those who could make a useful contribution to this country. Equally certainly, law-abiding foreigners who live here should be entitled to the full protection of English law and – inasmuch as it exists – English order. If that falls short, we should feel ashamed that this country’s guests have been maltreated.
Third, that in dealing with asylum and immigration, morality – especially the Christian ethic – is a useless guide. Salus populi (the welfare of the people) ought to be suprema lex (supreme law). Yet under international law, anyone with a well-grounded fear of persecution has a good claim for asylum. On a bad day, what proportion on the world’s population might qualify for that? We must be talking about hundreds of millions of people. It would be absurd to accept liabilities when we have no means of coping with them.
That leads to a drastic moral polarisation. There are those, like me, who argue that British public morality should be grounded on the best interests of the British people. There are others, perhaps following Jesus Christ in his most Socialist phases, who believe that we have an over-riding duty to all sufferers in all countries at all times. Accustomed to a muddled middle of pragmatism and intellectual evasion, most of our fellow countrymen avert their case from theological conflicts. If they are approached by someone with an Oxfam collection tin, they will reach for some small change, in a brief interruption to shopping for some extravagance. But in practice, most Brits believe that they are entitled to protect their own living standards from the rapacious claims of the world’s poor. So they should.
If you disagree, feel free to sell all you have and give the proceeds to the poor, before volunteering to work in a leper colony. In practice, however, you will luxuriate in complacent hypocrisy, denouncing hard-heated Tories and preparing to vote Labour, with the reassurance that Rachel Reeves will not increase your tax bill by very much. You will feel better about yourself – that comes easily to well-off Lefties – while the world’s poor continue to scramble for scraps from the rich world’s dining table.
English law is in a mess, because much of the political and legal class has been guilty of negligence and arrogance. John Adams may have been an American revolutionary but he could recognise Divine Providence when he saw it. He did so with English Common Law. Under it, judges could, and can, reason from old principles to new circumstances. In this, they often make new laws, as Lord Mansfield did when he effectively abolished slavery in England. More recently, it had been assumed that a husband could demand sex from his wife whenever he chose to do so. Then a white, male, public school and Oxbridge judge said no: a husband who coerced his wife in bed could be charged with marital rape.
In each case, this Common Law judgment could have been over-ruled by the real supreme court, the high court of Parliament, which would then have passed a statute guaranteeing English slave-owners’ rights, and husbands’ prerogatives. Parliament did not do so. The law and progress marched on in harmony.
Compare and contrast with the European Court of Human Rights. What beneficence has it ever conveyed on British subjects? There are countries – France and Belarus are obvious examples – where the judicial system has no deep roots in the rule of law and has been poisoned within living memory: where the locals would be wise to seek external validation. But we in this country have nothing to gain from the ECHR.
Two classes of persons – who overlap – disagree. The first are those on the Left who dislike this country, deplore its history and care nothing for its traditions. Anything which obstructs the English in the defence of their rights and freedoms is therefore to be welcomed, so long live the ECHR. The second is to be found in the judiciary. Various groups suffer from the same deformation professionelle, seeing themselves as potential Platonic guardians. Many academics and businessmen think that the country would be better governed if they ran it. The same is true of a fair few lawyers and judges. In each instance, from the best of motives, clever individuals think that they could rescue our imperfect democratic processes from the current incompetence. In particular, some judges think that they could use the ECHR as a court of appeal from the frailties of Parliament. Others, nostalgic remainers, believe that they can help to protect out politics from ‘populism’, by which they mean anything that they dislike.
They should be careful what they wish for. The prestige of our political class has never been lower. Large numbers of voters believe that they are being disregarded by a metropolitan elite, who know little and care less about most decent people’s values and aspirations. If the Conservative party can persuade them to the contrary, it could still win the next election. If disillusion grows, and Keir Starmer would not be able to correct it, anarcho-populists might have their opportunity.
One way to prevent that happening is to sort out the small boats. The government has spent much midnight oil on dealing with the Supreme Court’s objections, which were well-founded in the law as it now stands. So solutions must be found.
Five principles are crucial. First, the numbers must come down; drastically down. Second, it should be made clear that no illegal immigrant will ever be given the right to remain in this country. Third, it would be easier to reinforce that declaration if the boat people were processed off-shore. Fourth, that a further point should be made clear. No-one coming from France has any right to asylum. Fifth and finally, we should disregard the question of refoulement. But if these illegal immigrants absolutely cannot be sent home, the most that they should be able to expect would not be hotel life. It would be basic accommodation in a camp.
We have stumbled into legal confusion because of an enmeshment of international obligations which few people even understand and few politicians have thought through. So the current degringolade in the Channel could actually be useful. It forces us to think about legal principles and about the very purpose of our laws. As I trust is clear, I believe that our laws exist to protect our rights and freedoms; our rule of law in a democracy: our government under the Crown in Parliament. No foreigner legally in this country should have anything to fear from all that, and some of them may end up by becoming British subjects. But boat people enticed by people-traffickers; that is not the rule of law. It is taking the piss.
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