Suing Suella; The Case Against The Home Secretary, and What it Means for British Politics
bigissue.com
The government is spending a lot of time in court, with people taking legal action to prevent policies that they believe are unlawful. This has recently coalesced around two policies and the respective legal fights to prevent their implementation.
The National Council for Civil Liberties (Liberty) is taking the Home Secretary to court over a perceived overreach of her powers. Liberty alleges that Braverman has illegally given the police additional powers to curtail protests by manipulating secondary legislation, even when Parliament voted down the same restrictions on a primary bill only months ago. According to Liberty, this violates the separation of powers embedded in our constitution, as all new legislation must be voted through Parliament. By using this “back door” to implement policy expressly against the consent of Parliament, Braverman is violating constitutional principles that are central to our democracy, and Liberty want to prove this in court.
This violation of parliamentary sovereignty – the doctrine that Parliament is supreme above all other bodies, including the Home Office – is perhaps ironic, given that Braverman and fellow Brexiteers touted the United Kingdom’s departure from the European Union as a key step to reclaiming said sovereignty.
This comes against the backdrop of the Police, Crime, Sentencing and Courts Act (2022), which has hugely restricted protest rights throughout the United Kingdom. Furthermore, the Public Order Act (2023) targeted specific offenses, such as ‘locking on’, and under which a guest at Royal Ascot was arrested for carrying glue which later turned out to be for her nails. Now, the Home Secretary is trying to further limit protestors’ rights through secondary legislation, against Parliament.
These new regulations would give the police powers to prevent and interrupt any protest that caused more than a “minor” disturbance to “the carrying out of day-to-day activities”. They seem to be particularly targeted towards protest tactics used by Extinction Rebellion and Just Stop Oil, such as blocking roads, as they include “in particular the making of a journey”.
This further erodes the British public’s protest rights and civil liberties, which should remain above partisan politics. Protest is a fundamental human right, often used as a final act of desperation to hold governments to account by the people, and restricting this right is often a first step towards authoritarianism. Liberty’s court case sees them challenge these dubious new powers through legal means, and asks the Supreme Court to decide if the powers (and the methods used to enact them0 are constitutional. This case is of the upmost constitutional importance, as the Justices are being asked to decide if the executive (through the Home Secretary) has the power to override the legislature.
Against this backdrop, the Court of Appeals has just overruled the High Court, and ruled that the plan to send migrants to Rwanda is unlawful because Rwanda is not a safe third country. The Court’s majority ruling reasoned that “there is a real risk that persons sent to Rwanda will be returned to their home countries where they faced persecution or other inhumane treatment, when, in fact, they have a good claim for asylum”. Rarely, the Lord Chief Justice dissented from the majority. The Court did reject a number of other aspects of the appeal brought by the appellants, including the objection that the plan was in violation of the UN Refugee Convention.
This is yet another legal blow for the government, and especially the Home Secretary, who has touted the Rwanda plan as a cornerstone of her efforts to curb immigration. Now that the Court of Appeal has ruled against the government, the plan cannot be enacted, although the government have said that they will seek an appeal in the Supreme Court. Again, the highest court is being asked to wade into the political arena and decide whether or not a government policy is lawful and constitutional.
This has led to some people perceiving the legal system, especially the judiciary, to be impeding onto the government’s political territory. This has led to some, including the Prime Minister, blaming “lefty lawyers” for the government’s inability to implement policy. Suella Braverman even wrote to Conservative Party members, raving against “an activist blob of leftwing [sic] lawyers, civil servants and the Labour party” who opposed her immigration plans. This politicisation, even demonisation, of the legal system by people who feel blocked by it is not new; Boris Johnson was criticised for demonising “lefty human rights lawyers”, as was Priti Patel. And then there is the infamous headline that the Daily Mail ran in 2016, branding three High Court judges “enemies of the people”, when the High Court ruled that the government needed the consent of Parliament to trigger Article 50 and thus the process of leaving the European Union.
This hugely problematic demonisation of the legal system is as recent as the wave of populism that brought Brexit to the forefront of the political debate, but its age does not make it any less a problem. All democracies need a functioning judiciary that is unafraid to hold everyone to the law, even the government, and the recent rhetoric risks eroding the stability of the legal system itself. Some would say that the judiciary shouldn’t step into politics, but the response is that the government shouldn’t try to implement unlawful and unconstitutional policies. Furthermore, the legal system is meant to step into politics – it steps into every aspect of life, from the family to drug consumption, and politics isn’t an exemption. The entire point of the legal system is to keep people – even the government – within the bounds of the law, and the Supreme Court was set up expressly to provide legal oversight on constitutional matters. The Court has stepped into the political arena when it needs to, as with Boris Johnson’s illegal prorogation of Parliament, and this (whilst not necessarily desirable) is both normal and necessary when ministers step outside their legal limits.
The demonisation of the legal system reveals the frustration from a particular political group which they are taking out on those that seem to be preventing them from implementing their goals. This has dangerous consequences, and they need to be recognised and addressed for the health of our polity. Failure to do so will see the erosion of the rule of law (as Lord Bingham saw it) as the judiciary will become increasingly scared to intervene for fear of further demonisation. This would dismantle the checks and balances that our system relies of, eventually leading to the collapse of the democratic system that we hold dear. Thus it is fundamentally important to avoid ‘blaming’ the legal system for doing its job, and instead we should turn our attention to government policies and ask why they are deemed unlawful. Whichever way you vote, these two cases remind us of the importance of holding any government to the highest standard, and (even if the court finds in their favour) taking them to court to have them prove that their policies don’t violate the laws that protect us.
by Callum Tilley