The Rwanda Bill has flushed out the anti-democrats

Lord Carlile, former independent reviewer of UK terrorism legislation, told Radio 4’s Today programme this week that the government’s ill-fated Rwanda Bill is an ‘illegitimate interference by politics with the law’. He claimed that the government was ‘elevating itself to an unacceptable level above the law’. And he even warned that the bill, in its efforts to sidestep a Supreme Court judgement, marked a step towards ‘totalitarianism’. This is not correct and is a gross misunderstanding of our constitution.

It seems that Lord Carlile wants to join that long line of patrician lawyers who are wheeled out whenever a policy hated by elites gets close to actually happening. In the case of the Rwanda Bill, though, it’s a wonder why Carlile even bothered to step in. The scheme is likely doomed anyway. Ever since it was announced back in April 2022, the plan to deport illegal migrants to Rwanda has been swamped in legal battles. It has been batted back and forth between courts, declared unlawful, lawful and then unlawful again.

At present, the Conservatives are trying to push through a piece of legislation that would declare Rwanda a safe country for the purposes of deportation. This is what Lord Carlile objects to as being illegal.

It’s not entirely clear what point Carlile is trying to argue here. Is he trying to claim that international law is sovereign over the UK parliament, and that parliament cannot pass a law contrary to an international treaty like the European Convention on Human Rights? This is simply not true. In fact, this argument was explicitly refuted by the Supreme Court in 2021. The court reiterated the point that international laws – treaties – are only binding here in the UK if they are made part of our law by parliament. Parliament is the control mechanism, parliament is in charge – it can do as it chooses.

Did Carlile instead mean that because the courts had declared Rwanda ‘not safe’, that parliament could not override them? This is also incorrect. As one article for the UK Constitutional Law Association points out, parliament has every right to override court judgements. Indeed, it is about to go even further than that in a different context. Currently, the UK government intends to pass a law to overturn hundreds of wrongful convictions handed out in the Post Office scandal. Parliament has a lot more power than some seem to think.

Maybe Carlile meant that parliament can’t control the courts at all? This, again, is false. In 2005, parliament passed the Constitutional Reform Act to create the UK Supreme Court. Section 23 and onwards of this act shows just how great a power parliament exerts over the highest court in the land. In Section 7, you’ll find that parliament itself is the one to give power to the Lord Chief Justice. And what parliament gives, parliament can take away.

Did Carlile perhaps mean that parliament can’t ever change the law? Surely this is exactly what parliament exists to do. Courts will apply the law as made by parliament. If parliament changes the law, then the courts are obliged to apply the new law and ignore the old one.

The Supreme Court’s Lord Reed, in his 2021 ruling, was generous about all those who seem to misunderstand the constitution and parliamentary sovereignty. He wondered whether our exposure to international bodies, who see the world very differently to us, has made it hard for some to understand how our own constitution actually works.

Most human societies begin as tyrannies – as did the UK. Under these tyrannies, what we call ‘supremacy’ (all the power) is vested in one person. Historically in the UK, this has been a monarch, as was also the case in other European nations. But during the process of democratisation, the British did something slightly different. Many countries wrote out one set of constitutional rules and replaced their king with a president. We, however, replaced ours with a parliament – elected by the people and sovereign over our other institutions.

When Lord Carlile and others like him claim that the Rwanda plan is unlawful, they are really revealing their anti-democratic inclinations. Carlile has every right to disagree with the Rwanda Bill. But telling the public that unelected courts have sovereignty over our elected parliament is not right. Courts are subject to law, not above it – and law is made in parliament. Time for any misunderstanding to end.

Steven Barrett is a barrister.