One of the questions raised by the Government’s struggle to control the Canal crossing problem is to what extent it is really possible to do so, under our current arrangements. A key component of this issue is the thorny one of international law.
As I noted recently, the Rwanda scheme is theoretically on the right hand side of the courts. The Court of Appeal ruling, while surprising, was based on technical questions about Kigali’s ability to meet its obligations, rather than any suggestion that the whole scheme was inherently illegal.
However, it is clear that opponents of the Illegal Migration Bill still hope that the actual operation of the scheme will be hampered, even if the relevant legislation is put on the statute book. The idea that anyone arriving in Britain through illegal means will be transferred to Rwanda for prosecution is dismissed as a fantasy.
This is important, especially since in the short term (as I wrote last week) any political dividend the government hopes to reap from passing the Illegal Migration Law depends on it being seen to work. But it will also open up the broader question of whether or not our existing international law obligations are tenable in what William Hague has called “the age of migration.”
At present, this debate, like that of our membership of the EU a couple of decades ago, is more latent than real. Conservatives have complained about the Human Rights Act ever since it was passed. But these complaints (like those in Brussels) have not amounted to much; the unlamented Bill of Rights bill, the closest they’ve come to apparent to do something about it, it was essentially a thin layer of red, white and blue paint on the existing order.
However, if it turns out that it is not possible to carry out an immigration policy that wins public approval without infringing international law, that gently smoking cauldron will burst at some point. At that point, the tension between the theory and practice of the British approach will come to the fore.
In theory, the British constitution remains political. Parliament is sovereign and can legislate as it wishes. The will of Parliament, expressed in legislation, cannot be contradicted. This legal truth is indeed reflected in the Human Rights Act (HRA); Courts can find something inadmissible under the HRA, but (with limited exceptions for legislation that preceded it), they can’t strike down legislation they find to be inconsistent with it, a crucial difference between our system and that of the most obvious comparator, the United States. .
Daily practice, however, is different. Once again, the HRA illustrates this: whatever their legal rights, successive governments have shown a loathing to simply put up with a declaration of incompatibility and proceed with a policy. Even the prisoners’ votes, the only issue on which Parliament held firm, ended in a face-saving compromise.
Beyond that, our “international legal obligations” often seem to stand as having greater moral force than the legislative agenda of an elected government. Consider the clutch of pearls that followed Brandon Lewis’s statement to Parliament on the UK Internal Market Act (UKIMA). This is not a question of a minister illegally exercising executive powers, but of primary legislation.
It is one thing, and quite appropriate, to argue that the executive must conduct itself lawfully. It is quite another to suggest that it is morally outrageous for Parliament to legislate outside international law. For such an attitude can only be reconciled with the political and democratic constitution of Great Britain through a transformation in our approach to international law.
After all, we don’t think it’s outrageous for a government to legislate in a way that overrides previous laws; it is a fundamental principle of our system that a parliament cannot bind its successors. Each new parliament is supreme and also has a new mandate from the electorate. Old promises do not trump new promises, nor old intentions over new intentions.
However, at present, the prevailing view is to treat international obligations as fixed. Not in terms of its content (see the endlessly protean “spirit” of the Belfast Agreement, or the ever-growing corpus of Strasbourg judgments), but in terms of its authority. Like the US Constitution, they seem to be regarded as fixed points around which democratic politics must navigate.
Unlike domestic law, or even the US Constitution, international legal commitments by their nature have little room for continual adjustment in response to democratic pressure, let alone in the UK, that he is in the habit, if at all, of covering such things.
This democratic deficit is more evident in the case of the European Convention on Human Rights. Following the creation of the Court (which was not part of the original scheme), membership means adhering not only to the rights enumerated in the original treaty, but also to its increasingly detailed interpretation as revealed/created through court decisions.
Two people may support the text of the Convention but have different and equally legitimate views on the detailed meaning and scope of their rights in individual cases.
But unlike national law, which is also defined and refined by judges, under the current system, neither have any democratic or political recourse should Convention law evolve in a way they don’t like. It has rather the character, in its operation if not in its theory, of the Holy Scriptures. It is a law dictated by an institution that is above, or at least beyond, democratic politics.
And the more extensive the role of international law in internal affairs, the more obstacles it imposes on democratic politics and political action, the more problematic it is.
This debate does not, or should not, begin and end with the ECHR. There are many other examples. For example, the Aarhus Convention caps the legal costs of people who challenge housing and infrastructure projects, even if they lose, encouraging misleading judgments and adding even more costs and delays to our planning system. See the abysmal and opaque process through which public health policy is established, internationally, within the framework of the Framework Convention for Tobacco Control.
(Hopefully the reader can separate his judgment on the democratic quality of both examples from his opinion on the ills of cigarettes or houses; “the right end by any means” is not the kind of constitution most people say they want. ).
For some, international law seems to serve a lot the same extrapolitical role served by (right) Supreme Court rulings in the United States. If what you want to do can’t be done within the scope of our existing commitments, too bad.
But why should it be like this? Treaties suffer from the same problem as the US Constitution in that they cannot, or at least do not evolve organically with changing conditions. Why should one assume that the Refugee Convention, ratified in 1951, will be in place by 2031, when, according to The Hague, there could be “140 million people on the move”?
More importantly, why should a previous government’s commitment to the international community trump (in practice if not legal theory) over a later government’s commitment to the British people? One need not wish to withdraw from all or any of our international obligations to concede that they should be subject to the nation’s permanent democratic consent.
Such a change would require an evolution in our attitude towards international law and the way international law is drafted. But such things have happened before. In the UK we now require Parliament to ratify treaties. Before that, there was a global move away from secret treaties in the aftermath of World War I.
It would upset many who like the rules that entrench the current arrangements, as well as perhaps the privileged role it gives to lawyers and those with the money to file lawsuits in the government process.
But the elite consensus on the European Union did not, in the end, prevent Brexit, nor Roe vs. Wade settle the abortion debate in the United States by decree. Our constitution reflects the fact that it is generally wiser to try to work with the flow of popular sentiment than to stifle it.