As Home Secretary, on the whole, you’ll want to stay on the right side of the law, right? I mean, you’re in charge of the police, the prisons, national security, immigration and all that sort of thing. Your portfolio is definitely what might be termed law-adjacent or, on Tinder, ‘law-curious’. On the principle of leading by example, you might be expected to comply not only with the letter but with the spirit of the law. So it is not a little concerning that in the matter of Manston asylum processing centre Suella Braverman is accused of knowingly breaking the law as a matter of policy.

I know: compassion for traumatised and penniless refugees isn’t part of the brief. We can moan all we like about the cruelty of detaining more than 3,000 asylum seekers in a processing facility with a capacity of 1,600. We can fret about the outbreaks of diphtheria and scabies, about the fact that toothbrushes are only issued with their handles broken off so that they can’t be turned into weapons, about how the asylum seekers are separated from family members of the opposite sex, are known by numbers rather than by names, and all the rest of it.

If someone told me there was only a 50-70 per cent chance that robbing a bank was illegal, I might fancy my chances

But there’s nothing in the statute book that says the Home Secretary needs to be cuddly. Indeed, there seems to be an electoral incentive to show the opposite. If you want to waste taxpayers’ money flying in by Chinook for a macho photo-opportunity, or own the libs by describing the arrival of asylum seekers as an ‘invasion’, knock yourself out. You can declare: ‘let’s stop pretending that they are all refugees in distress. The whole country knows that is not true.’ You can even say: ‘Some 40,000 people have arrived on the south coast this year alone, many of them facilitated by criminal gangs, some of them actual members of criminal gangs’ without specifying what percentage you imagine to be represented by ‘some’ or what the rest of them might be. Dinghy-loving welfare entrepreneurs of some sort, I suppose.

Complying with the law, though, is a basic expectation of the role. It says so in black and white in the ministerial code. On Monday, the Home Secretary told Parliament categorically that she had done so. ‘I have never ignored legal advice,’ she said. ‘As a former Attorney General, I know the importance of taking legal advice into account.’ Yesterday, though, the Sunday Times reported that during her previous stint as Home Secretary she had been warned repeatedly and in writing that keeping refugees in Manston for longer than 24 hours was against the law, and that this was exactly what was happening. One source the paper quoted claimed she ‘knowingly, wantonly and deliberately, even after receiving advice, failed to act to bring the Home Office back within the law’.

The first warning came just a few days into her time as Home Secretary – when an internal document advised that several families had been kept at Manston longer than the legal maximum allowed and warned that there was a 50-70 per cent chance that claims against the government for unlawful detention would prosper in court. A week later, officials warned that the site was in danger of being ‘overwhelmed’ if its guests weren’t processed and moved on. A fortnight or so later, with another 2,000-4,000 refugees inbound, officials repeated the warning – and presented plans that would allow the Home Office to move people on from Manston. Those plans were not implemented.

By now, there are people who have been held there for as long as four weeks. Braverman tells parliament that ‘what I have refused to do is to prematurely release thousands of people into local communities without having anywhere for them to stay’, which sounds considerate. She’s accused of blocking the use of hotels for refugee accommodation, which sounds less so. She denies it. Some of her officials remember things differently. No doubt this misunderstanding will be resolved in due course. At any rate, reluctance to rehouse asylum seekers in hotels would turn out to be a false economy if, as is claimed, successful legal action could cost the taxpayer £10,000 per migrant.

But here’s the thing. Suella’s folk are briefing that the Sunday Times has got it quite wrong. They don’t deny that the advice she was given was as reported, mind. Rather, ‘sources close to Braverman’ (in the immortal phrase) ‘insist that at this point she was […] waiting for a second opinion and the advice did not “unequivocally” state the situation was unlawful.’ Which, on the face of it, sounds like rather a good excuse. The law is a complicated thing, sometimes. Isn’t it the duty of a Home Secretary managing a difficult situation to make the best calls she can within the affordances allowed by legal grey areas?

Wasn’t all this the fault, rather, of those mealy-mouthed government lawyers with their refusal to give the ‘unequivocal’ advice that would have made her course of action clear? Who were these periwigged nitwits treating the law of the land like odds in a casino? If someone told me there was only a 50-70 per cent chance that robbing a bank was illegal, and the bank had an attractive amount of money in it, I might fancy my chances. I might even ask for a second opinion and trouser a few bundles of fifties while I was waiting, in the hopes the court would look leniently on an honest mistake.

Turning this rum situation over in my mind, though, I remembered something. In July there was a minor kerfuffle when the Attorney General issued new guidance banning government lawyers from using the word ‘unlawful’. The Attorney General insisted that what lawyers were now calling the ‘u-word’ was verboten, that ‘binary answers’ were unhelpful, and that instead they should just try to estimate the percentage chances of HMG getting away with something. And the name of that Attorney General? Oh go on, I’ll leave you to guess.

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