When constitutional law gets interesting

From time to time we witness an extraordinary frenzy of activity in Parliament. We saw it this week as Parliamentary procedures which are pretty opaque to most of us were used to drive through the legislation relating to the Rwanda scheme. It will take a little time for the relevant Act of Parliament formally to come into force as the process for Royal assent is worked through. We can then expect to see extraordinary levels of activity in the courts.

We have already been told that the Government has lined up substantial amounts of court time and space, as well as judges. Setting aside for a moment the rueful expressions of my colleagues who work in dispute resolution whose lives have not been made easy by the growing challenges posed by a court system which has been underfunded and rationalised to an operational state where court time has become a precious commodity, these preparations would appear to be aimed at enabling the review and challenge processes for individual cases which are? within the Rwanda legislation to be completed quickly.? However, the major legal battle grounds are likely to be elsewhere.

?In recent years, the relationship between the government and the courts has been, to say the least, the source of some tension. The courts have ruled against the government in a series of high profile cases, and the government’s responses to those reverses have ranged from expressions of disappointment that the courts have frustrated the government’s democratic mandate to broad assertions of political sabotage by lefty lawyers.

If we cut through the rhetoric, what we really have is debate about the degree to which the courts have a role in judging the actions of government. At one end of the scale, the role of the courts is clear. Parliament creates legislation, the government applies it and if, in its application of legislation people claim that the government has made mistakes in the procedure used or in its interpretation of the legislation, the courts are there to the decide whether or not mistakes have taken place.

At the other end of the scale, there is a more tricky area where the courts are asked to intervene in circumstances where the government has acted but there is no legislation to cover the matters at large. These situations often arise out of our not having a formal written constitution, and recent examples include the case brought by Gina Miller over the correct procedure to serve notice to leave the EU and the decision of the Supreme Court to declare the prorogation of Parliament by the Boris Johnson government to have been an inappropriate us of the power to prorogue. These are cases in which there are few set rules. They create significant debate not only as to their outcome but, at a more fundamental level, as to whether the courts have any business getting involved in them at all. It wasn’t just the rather bruised government who were saying that-in the prorogation case, they were supported by some prominent constitutional lawyers and by at least one former Supreme Court judge.

And then there are the cases in the middle, which the Rwanda legislation seems likely to become, which are the trickiest of all. These are the cases where there is specific legislation, but there is some lack of clarity as to how that legislation fits in both with wider legislation and international treaty obligations. At its essence, the Rwanda legislation seeks to overcome the concerns recently expressed by the Supreme Court that Rwanda may not be a safe country by making a declaration within the Rwanda Act itself that it is safe. It also aims to limit wider grounds for challenge in individual cases and the give ministers a discretion as to whether they take any notice of anything that the European Court of Human Rights has to say about it all. It seems unlikely that as a constitutional matter the courts would feel able to interfere with the statutory presumption that Rwanda is safe, even if evidence were to emerge that it isn’t. However, it seems probable that arguments will be run in the courts that the Rwanda legislation does not effectively exclude or trump the Human Rights Act, and there is uncertainty about the implications of a decision not to abide by a direction of the European Court of Human Rights.

Regardless of the results of this next frenzy of activity, the relationships between the government and each of the courts and the legal profession as a whole are unlikely to be improved by it. I make no comment on the policy itself, but the government has chosen a path of promising to bring in a policy which was always going to be difficult to implement because of established rights and obligations which were already in existence. In consequence, court challenges have frustrated the government’s intentions, as they were always going to do. The government is now using a novel legislative approach and has taken the risk that it may not have got it right.

Whilst no cabinet minister will be saying it in public, that risk will have been baked into the government’s policy decision. I would like to think that the debate from this point on could be more measured and recognise the complexities inherent in the position. However, given the high levels of political capital at stake for the government and modern political trends, I’m afraid that I’m digging out my tin hat for yet another round of lawyer bashing.