Katie Lam is a shadow Home Office minister and MP for Weald of Kent.
Earlier this week, I asked the Government whether they’d deport Shabir Ahmed, the ringleader of the Rochdale grooming gang who is now back on the streets.
After being convicted in 2012 for thirty counts of child rape, Ahmed has been released from prison early, as far too many dangerous prisoners now are.
When he was convicted, his victims were promised that he’d be sent back to Pakistan – but now, the Government say that this isn’t possible, because of a loophole in a decades-old law. Under the 1971 Immigration Act, citizens of Commonwealth countries can’t be deported, if they arrived in Britain before 1973 and have lived here for more than five years.
And, as usual, the response from Labour’s Border Security Minister, Alex Morris, was nothing more than proceduralist waffle. He said that “all options” are on the table, and that the Government would “look closely” at the amendment proposed by Chris Philp, which would close the loophole in the 1971 Act.
In other words, he refused to provide a straight answer to a straight question – and so we still don’t know whether the Government will take action, change the law, and deport this vile man.
We’ve seen this sort of thing again and again under Labour. Sometimes, they insist that they can’t act because the law says that they can’t. Often, they’ll say that they can’t change the law, because it would interfere with other legal obligations, including those created by the European Court of Human Rights.
And on the rare occasions that they get their act together and do the right thing, it takes weeks, with the final decision often delegated to some inquiry, commission, or bureaucratic quango.
This learned helplessness, and the instinct to default to ‘following procedure’ is totally at odds with the way that politics has functioned in this country for centuries. The British constitution is incredibly flexible. Under our system, Parliament can change any law, at any time – and make any law that it wants to.
While Parliament can delegate certain powers to outside bodies, it always retains the power to overturn those bodies. The judiciary is charged with interpreting Parliament’s will and applying the law – but if the judges get it wrong, Parliament is well within its rights to overturn them. That’s not true in the American system, where the Supreme Court can overturn actions taken by the President or by Congress if they’re not compatible with the Constitution – but it is true here.
In the words of AV Dicey, one of Britain’s greatest ever constitutional scholars, Parliament has the power to “make or unmake any law whatever”, while “no person or body is recognised…as having a right to override or set aside the legislation of Parliament”. The job of holding Parliament accountable falls, ultimately, to the British people themselves, from whom Parliament’s legitimacy and authority is drawn. If they don’t like the laws that their politicians make or unmake, they can vote them out.
It’s as simple as that. So if the Government, with its massive majority in Parliament, refuses to act, it’s not because they can’t, it’s because they’ve chosen not to.
It’s also the case that, over the years, Parliament has given ministers sweeping powers to make laws in their area of responsibility, without going through the full Parliamentary process. Parliament always retains the power to review or overturn this ‘secondary legislation’, but it does mean that ministers have the power to act decisively when they want to.
The Home Secretary, for example, has the power to change the rules about who can get a visa, and under what conditions, through secondary legislation. She also has the power to extend licensing hours for pubs and bars on occasions of “exceptional…significance”, which she did last week to allow pubs to stay open late for England’s match against Mexico.
Between these two constitutional facts – Parliament’s absolute power, and the broad powers delegated to ministers – a Government has the ability to act very quickly and very decisively.
You’d be forgiven for thinking otherwise, given the way that this Labour Government dithers and defers. Often, they try to excuse their inaction by talking about procedure, or by claiming that they’re ‘not allowed’ to act.
But this, almost always, disguises a deeper truth: that they don’t want to act, because they think that other considerations are more important.
It is profoundly cowardly and undemocratic to refuse to have that conversation publicly. If the Government really believes that changing the 1971 Immigration Act is too high a price to pay for the deportation of Shabir Ahmed, they should say so. People can then make up their minds about whether or not they agree. If they don’t, they can vote against the Government at the next election; if they do, they can vote to return them.
That’s how democratic politics, under the British system, is supposed to work. It relies on politicians being willing to explain what they’re doing, and why. If Labour ministers won’t even do that, they have no business being in politics in the first place.