The Safety of Rwanda Bill is through Parliament after the House of Lords finally bowed to the elected chamber as it is required to do – even if in the past it has not always done so immediately. The Commons can assert its supremacy through the use of the Parliament Act to force legislation on to the statute book. The Hunting Act 2004 was the last measure pushed through in this way.
However, that option was not open to Rishi Sunak, since it requires a delay of a year and the Bill would not have been enacted until after the general election. That would have defeated one of its intended aims, which is to show that the Tories are more to be trusted than Labour to deal with illegal immigration.
This is probably true, despite the failure so far of the Government to stop the boats or even reduce the numbers arriving on our shores. But at least they are trying. Moreover, it suits their political purposes to blame Labour, Lefty lawyers and human rights for thwarting the “will of the people’’. That would be a platform for an election campaign and one that might now happen sooner than anticipated.
The parliamentary fight may be over but another, potentially more problematic, constitutional clash looms with the courts and no one can be sure of the direction it will take. The Rwanda Act, as it will shortly become, specifically states that the courts cannot gainsay a government policy, whether it is right or wrong.
The Supreme Court said that it did not believe Rwanda was a safe place to send asylum seekers and that this was in breach of the UK’s obligations under various international treaties, principally the UN Refugee Convention.
The way around that was to introduce a law that states the opposite and for the courts to be forced to accept it, whether it is true or not. To that end, the Government has gone out of its way to secure further agreements with Rwanda, to sign a new treaty (yet to be ratified), and do everything it can to ensure it is a safe place.
The Act states, in terms, the principle that Parliament is sovereign and can change domestic law as it sees fit, including requiring a state of affairs or facts to be recognised if the Government says so, even if they are not necessarily facts.
When you stop to think about it, and we rarely do, this is a remarkable doctrine and one that underpins our entire constitutional dispensation. In theory, Parliament has given the Government the power to decree that two plus two equals five even when everyone knows it doesn’t.
Ministers might argue that, where Rwanda is concerned, the question of its being a safe country is a matter of opinion and the Supreme Court relied upon a tendentious assessment from the UN High Commissioner for Refugees to rule it was unsafe. The Government may well be right to take a different view.
It may be the case that no refugee will be harmed, discriminated against or repatriated. But what is so unusual about this Act is that it says that, even if all these things were to happen, Rwanda is still safe because Parliament has said so.
Despite the expression of Parliament’s will, ministers are still expecting a monumental legal fight. Otherwise why have 25 courtrooms and 150 judges on standby to hear cases? Indeed, it is conceivable that this matter will end up before the Supreme Court once more.
Mr Sunak is relying on the courts accepting the principle of parliamentary sovereignty as absolute, immutable and inviolable. But what if they don’t? The concept is not in any statute; it is a convention or tradition, articulated most forcefully by the Victorian constitutionalist A V Dicey. “Parliament has the right to make or unmake any law whatever, and further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.”
So imbued is this doctrine in our body politic (though it is an English concept, not Scottish) that no one ever really questions it. Parliament set aside some of its own powers through the 1972 European Communities Act, which meant that the European Court could strike down an Act of Parliament, as it occasionally did. But Westminster reasserted its legal authority by leaving the EU.
When Dicey was writing, there were no international treaty obligations to which successive British governments had bound themselves and whose infractions the courts were entitled to point out. Despite his legal absolutism, Dicey acknowledged that sovereignty was constrained in practical ways. No ruler could exercise sovereign power to make laws if the people would not obey them or him. So Parliament shares sovereignty with the people. Yet when Parliament tried to enact the Brexit referendum result, the courts intervened in areas they arguably should have stayed away from.
The test of whether Mr Sunak’s plan works is whether it deters those crossing the Channel and smashes the business model of the people smugglers, whose miserable traffic has just claimed another five lives. We will never find out if the flights don’t go ahead.
If Mr Sunak’s plan is thwarted once more by the courts, then he can hardly just shrug and carry on. He will have no option but to go to the country. At least he would be able to campaign on a clear issue that everyone could understand. Single issue elections are rare but not unprecedented: 1910, which clipped the wings of the Lords, and 1974 over trade union power come to mind.
The courts will be deeply reluctant to be seen challenging the concept of parliamentary sovereignty, though some jurists think it overblown. Sir Ivor Jennings, in The Law and the Constitution, said Dicey’s idea of the supremacy of parliament was “a legal fiction” that could lead to all manner of absurdities. Indeed, we may just have witnessed one with the Rwanda Bill.
It raises a question that may finally need to be addressed: is Parliament or the rule of law sovereign? Judges would be in uncharted territory to challenge such a fundamental doctrine and yet perhaps Mr Sunak secretly hopes they do.
After all, an election held on the constitutional question of “who governs?” and underpinned by public concern over immigration might be his best hope of avoiding an electoral meltdown.
William Turner is a seasoned U.K. correspondent with a deep understanding of domestic affairs. With a passion for British politics and culture, he provides insightful analysis and comprehensive coverage of events within the United Kingdom.
