Time to solve the illegal migrant crisis once and for all
Parliament must assert its will clearly, so that the courts can no longer block the Rwanda policy
BILL CASH3 December 2023 • 9:00am
CREDIT: Dan Kitwood
The crucial issue for voters is immigration and “stopping the boats”. So the Bill introduced into the Commons to do so must be belt and braces, in line with Section 38 of the Withdrawal Agreement Act 2020. It must recognise that the Parliament of the United Kingdom is sovereign.
The House of Lords Constitution Committee, including Europhiles, in their report of 18th January 2023 states: “Parliamentary sovereignty means that Parliament can legislate contrary to the UK’s obligations under international law”, with clear, express and unambiguous words.
I have not seen the Rwanda treaty or the Bill yet, but last week colleagues urged the Government to sort this once and for all. The courts will comply with such clear directions from Parliament.
In the Nationality and Borders Bill 2021, I proposed an amendment in the Commons, with much support, for a clear “notwithstanding” formula to override the Human Rights Act, the Refugee Convention and the European Convention on Human Rights. “Notwithstanding” is well understood as ordinary, plain language and used in thousands of commercial contracts. This, if enacted and tweaked by parliamentary counsel, would have done the job. It was not adopted, so we now need action and political will.
From leading House of Lords and Supreme Court judgments, if legislation is properly framed then Parliament’s intention is clear, as set out in the Court of Appeal in R vs. Lyons: “the will of Parliament [as expressed in Section 434] trumps any international obligation”. The Law Lords unanimously agreed with Lord Hoffmann endorsing this.
He stated: “If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether it would involve the Crown in breach of an international treaty or not”. Indeed, in the Supreme Court judgment last month, presided over by Lord Reed, one claimant’s case (ASM) was dismissed because that claim had already been overtaken by clear statutory repeal. The words used by that court were: “The principle of legality does not permit a court to disregard an unambiguous expression of Parliament’s intention such as that with which we are concerned in the present case”.
In another Supreme Court case in 2019, presided by Baroness Hale, there was a split decision turning on the particular words in another enactment, but where a common law presumption against ousting the court’s jurisdiction was invoked by a mere four to three. The new Bill must use exact words disapplying any such presumption.
The House of Lords will likely oppose any “notwithstanding” legislation, although the late Lord Judge, recently Chairman of the Crossbench Peers, stated in line with Lord Bingham: “In our constitutional arrangements, Parliament is sovereign. It can overrule through the legislative process any decision of the Supreme Court”.
This is all about the will of the voters and their trust in government and constitutional statutory interpretation. Voters will not excuse failure on illegal migration in yet another bill. The unelected House of Lords have no basis for opposing bills consistent with parliamentary sovereignty, and the Labour Party endorsed that sovereignty in the Human Rights Act.
Control over our borders is a Manifesto commitment, in line with the 2016 Referendum result to leave the EU and the Withdrawal Agreement Act 2020. What some readers may not yet know is that the European Union has a new Migration and Asylum Pact for all member states, debated at the Madrid summit of the Chairmen of the National Parliaments of the European Union earlier this week, which I witnessed. This will impose on all the member states quotas of immigrants with effective fines for non-compliance.
Our Government is on the cliff edge of an electoral black hole, but can still get all this right in the next few days.
Sir Bill Cash is Conservative MP for Stone
