Yesterday, the Times published a report on the latest row between the Civil Service and the Government over the Rwanda policy which included the following marmalade-dropper of a statement from an anonymous senior official: “The government can’t legislate its way out of the Supreme Court judgement.”
The Government can, in fact, legislate its way out of a Supreme Court judgement. The will of Parliament expressed in legislation is sovereign; there is no higher law in the British constitution. Parliament can, provided it is adequately specific and clear in its intentions, legislate to whatever effect it likes.
Some civil servants seem not to grasp this very basic fact about how our system of government operates. The Times quotes another “senior Home Office source” on the proposal that the Government pass a law declaring Rwanda safe:
“Number 10 is very gungho but they’re trying to push this through for political reasons and they don’t know what they’re doing legally. Legislating to say Rwanda is safe doesn’t mean it is true… It’s all gimmicks.”
Of course, no act of parliament can by itself change the material facts on the ground in Rwanda, a country it doesn’t govern (and indeed never has).
But legally, that doesn’t matter. The point is that Parliament can, if it so chooses, decree Rwanda to be safe for the purposes of British law. Were it ever desirable for the courts to deem black to be white, and vice versa, it could put that in law too; that it wouldn’t change the actual colour of anything in the material world would be, well, immaterial.
As ever when discussing matters of high constitutional theory, this stuff can seem fairly arcane – especially when it is adduced in defence of the Rwanda scheme (or rather, the Government’s right to pursue it), a policy many dislike and more still do not believe would have a tangible impact on the number of illegal channel crossings even if successful.
Yet as always in such cases, it is important to separate one’s feelings about the particular policy being pursued by the government of the day from arguments about how the system works. A constitution is about means, not ends; the test of a good one is not the extent to which it facilitates your team and thwarts your opponents.
It is one thing to insist that the executive operates within the constraints of the law and any international treaties the United Kingdom has signed up to.
This can sometimes be counter-productive, from the point of view of defending the status quo. Our habit of gold-plating EU laws and regulations made our membership more onerous than that of other countries which were happier to play fast and loose, but it was defensible.
But it is quite another, and grossly improper, to claim that the Government cannot try to pass new legislation to alter those constraints. It is for Parliament, not the Civil Service, to accept or reject any new laws proposed by ministers.
It may also, as with EU law, prove counter-productive for those seeking to defend our existing international obligations. We already lack the sort of safety valve enjoyed by countries such as France, which recently simply ignored an European Court of Human Rights ruling to deport a man with terror connections. If officials and lawyers succeed in taking any specific adjustments to the UK’s commitments off the table, they make a full-fat showdown over membership of the Convention more likely.
As I’ve written previously, the Home Office seems to be one part of Whitehall where politicians’ fears that they are being wilfully conspired against by officials seem more real than imagined:
“As Lord Wolfson has set out, the PSC’s proposed strike over the Rwanda scheme is politically-motivated and entirely unacceptable. A policy is only “illegal” in this country if it contravenes domestic law; those unwilling to carry forward the lawful policy of the Government should resign.”
(Likewise, those officials pleading the Civil Service Code to say they can’t work on the policy should consider another of its provisions: “You must serve the government, whatever its political persuasion… no matter what your own political beliefs are”.)
It is true that plenty of people who ought to know better seem often to forget how our constitution works, and there is a certain type of lawfare enthusiast who thinks changing the law is cheating. (On the other side, it is often unfair to characterise government lawyers as blocking proposals when they inform ministers that a policy risks defeat at judicial review; it is for ministers to make policy more legally robust if they wish.)
But this latest row needs to be seen in the wider and troubling context of the conduct of parts of the Home Office over Rwanda, and indeed immigration policy in general.
It would be unfortunate, not to mention pretty strange, were the Government to end up steering into an important constitutional showdown over the limits of official power over the Rwanda policy, a scheme with few friends. But if it does, it is essential that it prevail. Whatever one thinks of what ministers are trying to do, their constitutional right to lay legislation before Parliament and make their case ought to be indisputable.