Sir Julian Brazier is a former Defence Minister, and was MP for Canterbury from 1987-2017.
The crisis that the Government faces over the recent Supreme Court judgement on Rwanda – in the news yet again this morning – goes much deeper than migration issues and cuts across political lines in an unusual way.
We must not allow this debate to be characterised as a struggle of “right-wing Conservatives contra mundum”. It is more nuanced than that. Resolving this web of issues is crucial for our country’s security and stability – not just for the electoral hopes of our party – but we must avoid over-simplifying the issues in making the case for stopping the boats: the Government needs as broad a coalition of voices as possible to tackle the fissure opening up in our constitution and public life.
Support for the broad requirement to move to offshore processing is growing. Ken Clarke, famously characterised by Labour’s Jack Straw as a dyed-in-the-wool liberal, supports the principle and Matthew Parris, who gave up his Conservative membership in 2019, does so too. Meanwhile, Italy, Austria and Denmark are all moving towards offshore processing, and there are hints that Germany may do the same.
The pattern of views on the wider judicial issues is also nuanced. Jonathan Sumption was one of the first and strongest legal voices to condemn the government’s plan to use emergency legislation to override the Supreme Court. Yet he had earlier made an eloquent case for Britain to leave the jurisdiction of the European Court of Human Rights.
Intriguingly, the first example Sumption that gave is the fact that the court arrogated to itself in 2011 the power to rule on British military operations abroad. In 2013, the (cross party) Defence Select Committee condemned the dire impact this could have on operations, saying of a Supreme Court ruling (which stemmed directly from this ECHR ruling) that “we believe that this may … open up decisions, taken in situations of intense armed conflict where commanders are forced to make the best judgments they can, to examination by the Courts.”
More recently, Tom Tugendhat, an accomplished former soldier, now Security Minister, highlighted the damage this is doing to our soldiers’ ability to wage war.
In the light of recent allegations, it should be noted that alleged atrocities by British troops are traditionally dealt with in military law, grounded in the Geneva Convention and International Humanitarian Law, not Human Rights Law. As the International Red Cross argues: “…when human rights law and IHL are in conflict, the latter is deemed to prevail, since it was conceived specifically to deal with armed conflict.”
Let’s stand back from the particular issues, crucial though national defence and border control are, and look at some constitutional first principles.
Britain never accepted the Enlightenment view of the separation of powers, as expressed by Montesquieu, Rousseau, Paine and others. Indeed, the name “Enlightenment” originates from a sarcasm of Edmund Burke’s referring to the bloodshed on the streets of Paris as “the fruits of the new enlightenment”. Those thinkers wanted theoretical principles to override constitutional custom and stability and their ideas culminated in the horrors of the French Revolution.
Britain’s government is not separate from Parliament, as, for example, the US president and his administration are from Congress. In the UK, Parliament is sovereign, and Britain’s highest court was, until 2009, a judicial sub-committee of Parliament’s upper chamber, with judges appointed by a cabinet minister, the Lord Chancellor, albeit for life to prevent interference in the decision-making.
In our last constitutional crisis, brought on by Brexit withdrawal, our new “Supreme Court” decided to behave like the American Supreme Court and the ECHR and extend its political territory. It overrode the principle established in, and always upheld since, the Bill of Rights of 1689 that the courts did not interfere in Parliamentary processes.
It did this by the simple sleight of hand of declaring that prorogation was not a “proceeding in Parliament”.
Unable to find any serious precedent for this post-1689, the Court astonishingly went back to a ruling in 1611, The Case of Proclamations (1611) which is cited three times in its short judgement. Yet, in 1611, Britain had no agreed constitutional structure and the seventeenth century courts had lost the confidence of all sections of the public, as Anna Keay outlines in her brilliant new book The Restless Republic. Judges were to argue, and even fight, on both sides in the subsequent bloody civil wars and political upheavals. Those upheavals ended, in England anyway, in 1689 when our constitutional arrangements, were finally settled in the Bill of Rights.
So any constitutional judgement grounded in a pre-1689 ruling is unworthy of the serious crisis it addressed. The sad truth is that our new “Supreme” Court took on a political role in 2019 and undermined the principle of parliamentary sovereignty.
In an earlier article, I pointed out how this new cuckoo in the nest is distorting our historic constitutional settlement. The way in which the Court is increasingly choosing to treat international treaty obligations judgement as directly justiciable, as reflected in the Rwanda case, adds a serious extra dimension to this.
It really is essential to stop the boats both to gain control of our borders and to cope with growing public anger. But we also need to remove grossly unfair handcuffs on our soldiers who we may put into harm’s way. There is a whole range of other matters where Parliament may need to make laws which judges, grounded in an increasingly remote, individual-centred outlook, would regard as inherently unlawful.
These range from emergency powers for dealing with terrorist nuclear threats, to coping with some of the more frightening features of artificial intelligence, to addressing the more mundane need to restore the national appetite for taking sensible risks, by limiting civil actions.
Ministers must obey the law but – for our hitherto flexible and effective – constitutional arrangements to work, we have to build a coalition for restoring parliamentary sovereignty. This will need several elements and time is short. David Cameron is showing his strong views on this issue. Rishi Sunak should send him round Europe to build a coalition for a joint front on overseas processing and Rwanda-type schemes, with a longer term programme for revising international treaties on refugees.
Britain’s new treaty with Rwanda, underpinned by our substantial bilateral aid programme, should address many of the Supreme Court’s concerns but, when introducing and defending the new Bill, ministers need to say robustly that it must be Parliament which decides the final balance to be struck between the rights of individuals and the public concern for controlling our borders – and stopping a vile trade, not any court.
Most lawyers (including Sumption) believe that the Supreme Court would not override primary legislation. But, if they are proved wrong, our next election must be fought on taking back control from the Supreme Court, and restoring our earlier arrangements. Parliamentary sovereignty is the foundation of the rule of law in our country and public confidence is essential for its maintenance.
Sir Julian Brazier is a former Defence Minister, and was MP for Canterbury from 1987-2017.
The crisis that the Government faces over the recent Supreme Court judgement on Rwanda – in the news yet again this morning – goes much deeper than migration issues and cuts across political lines in an unusual way.
We must not allow this debate to be characterised as a struggle of “right-wing Conservatives contra mundum”. It is more nuanced than that. Resolving this web of issues is crucial for our country’s security and stability – not just for the electoral hopes of our party – but we must avoid over-simplifying the issues in making the case for stopping the boats: the Government needs as broad a coalition of voices as possible to tackle the fissure opening up in our constitution and public life.
Support for the broad requirement to move to offshore processing is growing. Ken Clarke, famously characterised by Labour’s Jack Straw as a dyed-in-the-wool liberal, supports the principle and Matthew Parris, who gave up his Conservative membership in 2019, does so too. Meanwhile, Italy, Austria and Denmark are all moving towards offshore processing, and there are hints that Germany may do the same.
The pattern of views on the wider judicial issues is also nuanced. Jonathan Sumption was one of the first and strongest legal voices to condemn the government’s plan to use emergency legislation to override the Supreme Court. Yet he had earlier made an eloquent case for Britain to leave the jurisdiction of the European Court of Human Rights.
Intriguingly, the first example Sumption that gave is the fact that the court arrogated to itself in 2011 the power to rule on British military operations abroad. In 2013, the (cross party) Defence Select Committee condemned the dire impact this could have on operations, saying of a Supreme Court ruling (which stemmed directly from this ECHR ruling) that “we believe that this may … open up decisions, taken in situations of intense armed conflict where commanders are forced to make the best judgments they can, to examination by the Courts.”
More recently, Tom Tugendhat, an accomplished former soldier, now Security Minister, highlighted the damage this is doing to our soldiers’ ability to wage war.
In the light of recent allegations, it should be noted that alleged atrocities by British troops are traditionally dealt with in military law, grounded in the Geneva Convention and International Humanitarian Law, not Human Rights Law. As the International Red Cross argues: “…when human rights law and IHL are in conflict, the latter is deemed to prevail, since it was conceived specifically to deal with armed conflict.”
Let’s stand back from the particular issues, crucial though national defence and border control are, and look at some constitutional first principles.
Britain never accepted the Enlightenment view of the separation of powers, as expressed by Montesquieu, Rousseau, Paine and others. Indeed, the name “Enlightenment” originates from a sarcasm of Edmund Burke’s referring to the bloodshed on the streets of Paris as “the fruits of the new enlightenment”. Those thinkers wanted theoretical principles to override constitutional custom and stability and their ideas culminated in the horrors of the French Revolution.
Britain’s government is not separate from Parliament, as, for example, the US president and his administration are from Congress. In the UK, Parliament is sovereign, and Britain’s highest court was, until 2009, a judicial sub-committee of Parliament’s upper chamber, with judges appointed by a cabinet minister, the Lord Chancellor, albeit for life to prevent interference in the decision-making.
In our last constitutional crisis, brought on by Brexit withdrawal, our new “Supreme Court” decided to behave like the American Supreme Court and the ECHR and extend its political territory. It overrode the principle established in, and always upheld since, the Bill of Rights of 1689 that the courts did not interfere in Parliamentary processes.
It did this by the simple sleight of hand of declaring that prorogation was not a “proceeding in Parliament”.
Unable to find any serious precedent for this post-1689, the Court astonishingly went back to a ruling in 1611, The Case of Proclamations (1611) which is cited three times in its short judgement. Yet, in 1611, Britain had no agreed constitutional structure and the seventeenth century courts had lost the confidence of all sections of the public, as Anna Keay outlines in her brilliant new book The Restless Republic. Judges were to argue, and even fight, on both sides in the subsequent bloody civil wars and political upheavals. Those upheavals ended, in England anyway, in 1689 when our constitutional arrangements, were finally settled in the Bill of Rights.
So any constitutional judgement grounded in a pre-1689 ruling is unworthy of the serious crisis it addressed. The sad truth is that our new “Supreme” Court took on a political role in 2019 and undermined the principle of parliamentary sovereignty.
In an earlier article, I pointed out how this new cuckoo in the nest is distorting our historic constitutional settlement. The way in which the Court is increasingly choosing to treat international treaty obligations judgement as directly justiciable, as reflected in the Rwanda case, adds a serious extra dimension to this.
It really is essential to stop the boats both to gain control of our borders and to cope with growing public anger. But we also need to remove grossly unfair handcuffs on our soldiers who we may put into harm’s way. There is a whole range of other matters where Parliament may need to make laws which judges, grounded in an increasingly remote, individual-centred outlook, would regard as inherently unlawful.
These range from emergency powers for dealing with terrorist nuclear threats, to coping with some of the more frightening features of artificial intelligence, to addressing the more mundane need to restore the national appetite for taking sensible risks, by limiting civil actions.
Ministers must obey the law but – for our hitherto flexible and effective – constitutional arrangements to work, we have to build a coalition for restoring parliamentary sovereignty. This will need several elements and time is short. David Cameron is showing his strong views on this issue. Rishi Sunak should send him round Europe to build a coalition for a joint front on overseas processing and Rwanda-type schemes, with a longer term programme for revising international treaties on refugees.
Britain’s new treaty with Rwanda, underpinned by our substantial bilateral aid programme, should address many of the Supreme Court’s concerns but, when introducing and defending the new Bill, ministers need to say robustly that it must be Parliament which decides the final balance to be struck between the rights of individuals and the public concern for controlling our borders – and stopping a vile trade, not any court.
Most lawyers (including Sumption) believe that the Supreme Court would not override primary legislation. But, if they are proved wrong, our next election must be fought on taking back control from the Supreme Court, and restoring our earlier arrangements. Parliamentary sovereignty is the foundation of the rule of law in our country and public confidence is essential for its maintenance.