Barristers’ chambers whose lawyers helped defeat the Rwanda scheme at the supreme court have been approached by the attorney general’s office to advise on the next steps for the plans, in a highly unusual move.
The attorney general, Victoria Prentis, has been tasked with drawing up a watertight Rwanda bill, and her staff have contacted human rights lawyers at barristers’ chambers associated with judicial reviews against the Home Office, asking if counsel will examine the draft legislation, the Guardian has learned.
The government is planning to present the bill to MPs by the end of this week. Ministers hope it will enforce a new treaty with the Rwandan government and get around last month’s supreme court ruling that the plan to send asylum seekers to Rwanda was unlawful.
The move has led to speculation that Prentis – believed to be against moves from hard-right Tories to leave the European convention on human rights – is gathering evidence to argue against leaving the convention.
Others believe that she may be trying to make the bill as watertight as possible by encouraging the involvement of specialist human rights lawyers before the bill is published.
Matrix Chambers, which has been heavily involved in challenging the government’s Rwanda scheme, was approached by the attorney general’s office last week, the Guardian understands. This has led to a message being sent to leading barristers asking if they would be willing to offer advice. Lawyers who acted in the Rwanda case would probably be conflicted against providing the government with advice on the same issue.
Legal sources said the move was unusual because the attorney general’s office usually relies on advice from in-house lawyers and counsel from parliament. However, a former government lawyer said asking counsel for advice was not uncommon, although this would usually be highly targeted rather than a chambers being approached.
It comes amid heated discussions in government about how far the new legislation should go to sidestep future legal challenges.
Backbench Conservative MPs from the hard right have claimed that the legislation will fail unless it also disapplies the European convention on human rights (ECHR).
Meanwhile, MPs from the centre left of the party have warned that dozens could rebel if the government steps away from international conventions, joining pariah states such as Russia and Belarus.
No 10 has been considering two 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, sources said.
The second, “full-fat” option, would remove the right of judicial review and include “notwithstanding clauses”, which would allow ministers to ignore the ECHR and other international treaties in the area of asylum. It is understood that ministers are closing in on a “middle way” between the both options, which will not be finalised until the treaty has been signed.
Insiders said that Prentis has been overseeing the legislation, while Robert Jenrick, the immigration minister, has had a “minor role”. She is often characterised as being reluctant to withdraw the UK from international treaties, while Jenrick has embraced many of the hardline policies put forward by Suella Braverman, the former home secretary, who was sacked last month.
A spokesperson for the attorney general’s office said: “By longstanding convention, reflected in the ministerial code, whether the law officers have been asked to provide legal advice and the content of any advice is not disclosed outside government without their explicit consent. That consent is rarely given.”
