The judges v ‘the people’
It’s not about the rule of law, it’s about whose side you’re on
When my elder daughter went into Year 6, the final stage of primary school, we debated whether or not to let her walk home alone. I agree that it’s neurotic how protective modern parents can be, but in the back of our minds was the recent case of a man who had been arrested for trying to kidnap schoolgirls very close to our home in north London.
What made the case so chilling, and so infuriating, was that the man in question – an illegal immigrant from Somalia – had previously been convicted of committing a brutal rape a few miles away. He had served just six years for that horrendous crime but, rather than being deported, he was simply released.
He could not be removed because of human rights laws so, despite having half-strangled a woman during a terrifying and violent sex attack, as well as various other crimes, he was let loose on the British public. Convicted again for trying to abduct schoolgirls in 2016, he was sentenced to 12 years – so will soon be free again, probably living somewhere near me, in desperately needed social housing paid for by you.
If that sounds almost unbelievable, or at least some freak failure of the system, bear in mind that there are now 12,000 foreign national offenders walking around freely in Britain, men and women who have committed crimes on British soil but whom the authorities are unable to deport – so they are simply allowed to live among us.
This includes many violent offenders, and some who have already gone on to commit further crimes. There are many astounding cases, including 53 foreign terrorists who cannot be deported, and a rapist who can’t be removed because he wouldn’t receive the right medical treatment back home and would face a ‘real risk of social isolation and stigmatisation’.
As it stands, the law prevents us from removing these dangerous undesirables, in most cases related to our membership of the European Convention on Human Rights.
The ECHR is also at the centre of the state’s inability to stop the huge numbers of migrants crossing the Channel, which continues apace, causing a massive financial burden on the country and pressure on housing. It also presents a terrorism risk, with the Reading, Manchester and Liverpool terror attacks all carried out by men claiming asylum.
On Wednesday, the Supreme Court ruled against the Government’s Rwanda plan, citing Britain’s membership of the ECHR and the 1951 Refugee Convention.
Yuan Yi Zhu gives some of the background here, writing:
The case hinged on the principle of non-refoulement, according to which nations are forbidden from sending asylum seekers back to a country where they risk persecution. Rwanda, the Court decided, could not be trusted to comply with the principle, making the Government scheme unlawful.
The outcome was perhaps inevitable. Parliament could have, of course, legislated to override the European Convention on Human Rights, the Refugee Convention, and several other legal instruments, all of which guarantee the principle of non-refoulement. But faced with the political and diplomatic costs of such a course, the Government instead chose to argue that Rwanda was a safe third country. That was the gambit that failed today.
More broadly, the Supreme Court’s judgment is certain to lead to the renewal of calls for the United Kingdom to leave the ECHR. Probably for this very reason, in his oral remarks Lord Reed was at pains to emphasise that non-refoulement was enshrined not only in the ECHR, but in other treaties and domestic statutes too.
In her resignation letter, Suella Braverman accused Rishi Sunak of ‘magical thinking’ and of using ‘wishful thinking as a comfort blanket to avoid having to make hard choices’ over the small boats issue. This was apparently a result of his refusal to legislate to override the UK’s treaty and domestic legal obligations, which would have shielded the Rwanda plan from successful judicial review. Instead, the Government relied on a throw of the dice in front of the courts, which has now failed. Whatever one thinks of the morality of the Rwanda scheme or of the former home secretary, it is today hard to disagree with her assessment.
Along with various right-wing Tory MPs, Braverman is calling for emergency legislation to overrule the ECHR and Human Rights Act. Respectable middle-class opinion is horrified at the idea of attacking the law like this, which is apparently the sort of thing Putin or Xi would do. To override the ECHR would apparently make Britain a rogue state, and the plan to remove illegal migrants is immoral, unworkable, and quite possibly illegal.
Law professor Richard Ekins also made the argument for leaving the ECHR earlier in the year, writing:
The doctrine of parliamentary sovereignty provides that whatever the King-in-Parliament enacts is law. Legislative freedom is the centrepiece of the Westminster model and it is for Parliament, in conversation with the people, to decide freely what the law should be. However, membership of the ECHR and subjection to the jurisdiction of the Strasbourg Court means that Parliament’s freedom to legislate is exercised under a cloud: deliberation within Parliament is often distorted by reasoning not about the merits of proposed legislation but about its compatibility with the case law of the European Court of Human Rights. The problem has been vividly apparent in relation to the Government’s various attempts to address lawfare against UK armed forces.
The problem with the ECHR, then, is not that it is an international treaty. The problem is that the Court has made it into a dynamic treaty. Rather than simply upholding the terms agreed by the member states, the Strasbourg Court has, since the Seventies, said that the ECHR is a ‘living instrument’, the meaning of which changes as the Court decides a succession of cases and divines a changing European consensus.
Deploying this approach, the Court has remade the Convention, imposing far-reaching new obligations on states and driving its own vision for social, moral and political reform across Europe. Most strikingly, the Strasbourg Court has invented a whole new European law of immigration and asylum which has no foundation in the text. But the Court’s case law distorts legislative deliberation and government policy-making across the field, including in relation to welfare policy, social policy, penal policy, counter-terrorism, military action, housing, taxation and press freedom.
(Professor Ekins also touched on the Good Friday Agreement problem in his paper from last year.)
I’m not a lawyer or a legal expert in any way, largely because I lack the concentration span or work ethic. What interests me is why people take the side of the judiciary against the executive and legislature, not just in this case but in almost all cases. It’s not about the rule of law, or the correct procedure or ‘norms’, it’s about who’s on your side.
People’s support for judges is similar to their attachment to free speech. Just as many tend to oppose ‘cancel culture’ when it’s their side getting cancelled, having pretended it didn’t exist beforehand, so they tend to support the judiciary because they agree with them.
Imagine a scenario where Britain was still filled with the likes of Joseph Cantley, the comically reactionary judge from the Jeremy Thorpe case (famously parodied by Peter Cook). And that these bewigged hanging judges repeatedly frustrated a progressive government with a popular mandate to liberalise laws regarding hot-button issues. The same people talking about the rule of law would instead demand the repeal of the laws blocking their path – just as Tory MPs are doing now. They would, quite correctly, point to the principle of Parliamentary sovereignty and argue that the Crown-in-Parliament can indeed legislate on such issues.
I’m not a populist and I have no problem with institutions placing restrictions on some areas of the popular will. I’d even be quite content with a reactionary government in which some unelected toff in the House of Lords was made Foreign Secretary [audience laughs, camera focuses in on Ian Hislop].
I dislike language like ‘enemies of the people’, not because it’s creeping fascism, but because political movements which cite ‘the people’ are universally terrible and incompetent. On average, the highly educated are better judges of things than the ‘people’. But when commentators talk about ‘the rule of law’, they tend to mean ‘the rule of judges who agree with them’.