Downing Street recently tweeted the following.
The tweet comes in response to the Government losing their Supreme Court case over the Rwanda Asylum plan. Now, before I go any further, I want to state a couple of things.
- First that the wording does come across a bit strangely, it’s peculiarly passive aggressive
- Secondly, it highlights my concern that the Government had completely failed to understand why they lost the case and missed the point that for a number of reasons, the Rwanda plan was a terrible idea.
However, I’ve also seem some extreme takes in response to the tweet, with a number of people describing it as sinister, suggesting that it indicates a totalitarian approach from the Government and that no, Parliament should not be free to decide and do things that the courts decide are illegal. I think that these responses come from a misunderstanding of how the UK Constitution and legal system work and perhaps suggest that there has also been a bit of a failure to understand why the Supreme Court made the decision it did.
We can assume that the Supreme Court have acted in effect as moral arbiters, determining that the Rwanda plan is immoral. This is understandable because many of us, including myself would argue that it is deeply immoral. We might think then that the court had determined that such an immoral act should be illegal. If this were the case, then the court would become activist in a similar way to the US Supreme Court and the European Court of Justice, in effect creating law. This is something that Conservative politicians are afraid is happening. However, that isn’t wht has happened here.
You see, the Prime Minister is correct. Constitutionally, Parliament is sovereign. By Parliament, we refer to the whole system with Acts required to pass through the Commons and House of Lords. We also talk about “the King in Parliament” so that Acts of Parliament must also be be given Royal assent, although this is effectively a rubber stamping exercise these days. So, Parliament determines what the Law is and therefore, no, a court cannot overrule what Parliament decides. In fact, Parliamentary Sovereignty also means that Parliament cannot bind its successors meaning that a future Government can repeal and replace any laws made by this Government.
The role of the courts is to interpret the Law. They do this on the basis of three things. First, they need to pay attention to what legislation says, second, if legislation doesn’t cover the issue then they need to look at things like Common Law, the traditional customs and practices that are commonly recognised and respected. Third, they take into account case law, looking back at how the law has been interpreted previously so that precedents are set. The courts cannot make new laws and I think most of us would consider it a good thing that unelected judges don’t get to do that.
It is helpful then to consider how the Supreme Court might rule against the Government. There are two ways that this has happened in recent years. First, whilst the court cannot rule primary legislation itself as illegal, much of the what the Government does is in effect operation and relies on indirect legislation through regulations or simply operational decision making. In that sense, the Court cannot strike down the legislation itself. However, it can look at what the Home Office attempt to do in practice and determine whether or not they have acted within their powers or outside them and hence unlawfully.
Now, it may seem at first glance that if the legislation says “You can transport asylum seekers to Rwanda and in effect subcontract our responsibilities to them”, then the court would struggle to argue that the Home Office was acting unlawfully, even if they considered it immoral. However, the Government are also governed by other legislation which shapes and restricts its practices. In thnis case, they have to pay attention to the Human Rights Act. This is the problem, because the argument was that if we could not guarantee the safety of asylum seekers sent to Rwanda, then their human rights would be breeched and the Government would have failed to meet its legal obligations.
Now, of course, Parliament cannot bind its successors and this means that it would be possible for the Government to do one of two things, it could repeal the Human Rights Act and so remove those obligations from domestic law or it could word the new legislation in such a way as to amend the previous act. This is why some politicians such as Suella Braverman were calling for a clause that would exclude these measures from the Human Rights Act. This would mean that we would have to interpret that act as including some exemptions. I think there are some serious moral and constitutional risks with going down such an approach. There is little point agreeing to human rights if you then just exempt yourself whenever it suits you. However, this would arguably make it much harder for the Supreme Court to rule against the Government, or if they did, then it would create a genuine constitutional crisis.
However, even if such a measure worked with the Supreme Court, I don’t think it would solve things for the Government. One of the reasons why the UK created its own supreme court and enacted Human Rights legislation was because there was a view that these kinds of decisions should be decided domestically. The UK is a signatory to the European Convention on Human Rights. As well as being subjected to legislation, the Government is also bound by its treaty commitments under international law. This means that if the government were to either seek to exempt the Rwanda plan from the Human Rights Act of repeal the Act altogether then we would simply revert to a situation where this and many more cases found their way to the European Court of Human Rights.
The Government would then have to consider withdrawing from the ECHR, something that some politicians have called for but again I think something that would raise significant concerns and probably would fail to pass through parliament.
So, it is important to say again that the Government would do better to look at why the Supreme Court ruled against them. My preference would be for them to withdraw the plan altogether but at a minimum they need to find a way to demonstrate that human rights can be protected.
However, it is also important that we don’t over-egg what is going on here with alarmist language about totalitarianism. The risk is that we in effect politicise the Supreme Court by siding with them when we agree with decisions. However, we need to be aware that there will be times when people will want the court to overrule parliament on other issues where we would consider Parliament to be on the right side of morality.
Faithroots 