One of the questions presented by the Government’s struggle to get a grip on the problem of Channel crossings is the extent to which doing so is, under our present arrangements, actually possible. A key component of this question is the thorny one of international law.
As I recently noted, the Rwanda scheme is in theory on the right side of the courts. The Court of Appeal’s ruling, even though surprising, was on the basis of technical questions regarding Kigali’s ability to uphold its obligations, rather than any suggestion that the whole scheme was inherently unlawful.
Yet it is clear that opponents of the Illegal Migration Bill still expect the actual operation of the scheme to be all but stymied, even if the relevant legislation gets onto the statute book. The idea that anybody arriving in Britain by illegal means will be transferred to Rwanda for processing is dismissed as a fantasy.
This matters, not least because in the short term (as I wrote last week) any political dividend the Government hopes to reap from passing the Illegal Migration Bill depends upon its being seen to work. But it will also blow open the broader issue of whether or not our existing international law obligations are tenable in what William Hague has dubbed “the age of migration”.
At present this debate, much like the one on our membership of the EU a couple of decades ago, is largely latent rather than real. The Conservatives have complained about the Human Rights Act since it was passed. But these complaints (as with those about Brussels before the rise of UKIP) have not amounted to much; the un-lamented Bill of Rights Bill, the closest they have come to seeming to do anything about it, was essentially a thin coat of red, white, and blue paint on the existing order.
Yet if it turns out that it is not possible to execute an immigration policy that meets public approval without breaking international law, that gently-smoking caldera will, at some point, erupt. At that point, the tension between the theory and practice of the British approach to it will be thrown into stark relief.
In theory, the British constitution remains a political one. Parliament is sovereign, and may legislate as it wishes. The will of Parliament, expressed in legislation, cannot be gainsaid. This legal truth is indeed reflected in the Human Rights Act (HRA); the courts may declare something inadmissible with the HRA, but (with limited exceptions for legislation which preceded it), cannot overturn legislation they deem to contradict it – a crucial difference between our system and that of the most obvious comparator, the United States.
Day-to-day practice, however, is different. Again, the HRA illustrates this: whatever their legal rights, successive governments have proven loathe to simply endure a declaration of incompatibility and proceed with a policy. Even prisoner votes, the one issue on which Parliament held out, ended in a face-saving compromise.
Beyond that, our “international legal obligations” seem very often to be held up as if they carry greater moral force than the legislative agenda of an elected government. Consider the pearl-clutching which followed Brandon Lewis’ statement to Parliament about the UK Internal Market Act (UKIMA). That was not a case of a minister exercising executive powers unlawfully, but of primary legislation.
It is one thing, and quite proper, to argue that the executive should conduct itself lawfully. It is quite another to suggest that it is morally outrageous for Parliament to legislate outside the tramlines of international law. For such an attitude can only be reconciled with Britain’s democratic and political constitution by a transformation in our approach to international law.
We do not, after all, think it outrageous for a government to legislate in a manner which overturns previous statute; it is a foundational principle of our system that one parliament cannot bind its successors. Each new parliament is supreme, and additionally possesses a fresh mandate from the electorate. Old promises do not trump new promises, nor old intentions new intentions.
Yet at present, the prevailing view is to treat international obligations as fixed. Not in terms of their content (witness the infinitely protean “spirit” of the Belfast Agreement, or ever expanding corpus of Strasbourg judgments), but in terms of their authority. Like the Constitution in the United States, they appear widely to be considered set 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 ongoing adjustment in response to democratic pressure – and even less in the United Kingdom, which makes a habit if anything of gold-plating such things.
This democratic deficit is most obvious in the case of the European Convention of Human Rights. Following the creation of the Court (which was not part of the original scheme), membership means signing up not only to the rights enumerated in the original treaty, but to their increasingly detailed interpretation as revealed/created through judicial decisions.
Two people might both support the text of the Convention yet take different, equally legitimate views about the detailed meaning and extent of its rights in individual cases.
But unlike domestic law, which is also defined and refined by judges, neither under the current system has any democratic or political recourse should Convention law evolve in a manner they dislike. It has rather more the character, in its operation if not its theory, of holy writ. It is law handed down by an institution which is above, or at least beyond, democratic politics.
And the more extensive is the role of international law in domestic affairs, the more fetters it places on democratic politics and political action, the more problematic that is.
This debate does not, or should not, begin and end with the ECHR. There are plenty of other examples. For example, the Aarhus Convention caps the legal costs of people mounting challenges to infrastructure and housing projects, even if they lose, encouraging specious suits and baking yet more costs and delays into our planning system. See too the abysmal, opaque process by which public health policy is set, internationally, under the Framework Convention on Tobacco Control.
(Hopefully the reader can separate their judgement on the democratic quality of both examples from their opinion on the evils of cigarettes or houses; “the right end by whatever means” is not the sort of constitution most people profess to want.)
To some, international law very much seems to serve the same extra-political function served by (the right) Supreme Court judgments in America. If what you want to do cannot be done within the scope of our existing commitments, too bad.
But why should this be the case? Treaties suffer the same problem as the US Constitution in that they cannot, or at least do not, evolve organically with changing conditions. Why should it be assumed that the Refugee Convention, ratified in 1951, will be fit for purpose in 2051, when, per Hague, there could be “140 million people on the move”?
More importantly still, why should a previous government’s commitment to the international community trump (in practice if not in legal theory) a later government’s commitments to the British people? One need not desire to withdraw from all our international obligations, or indeed any of them, to concede that they should be subject to the ongoing democratic consent of the nation.
Such a shift would require an evolution in our attitude toward international law, and to how such law is drafted. But such things have happened before. In the UK, we now require Parliament to ratify treaties. Before that, there was the global turn away from secret diplomacy in the wake of the First World War.
It would discomfort many who like the rules the current arrangements entrench, as well perhaps as the privileged role it grants to lawyers and those with the money to bring suits in the process of government.
But elite consensus on the European Union did not, in the end, prevent Brexit, nor Roe v Wade resolve America’s abortion debate by fiat. Our constitution reflects the fact that it is usually wiser to try and work with the flow of popular sentiment than dam it.