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Post by Dan Dare on Dec 20, 2023 10:05:10 GMT
There is a growing background muttering in the legal profession about the possibility that the Supreme Court will rule that the Act, which is still progressing through Parliament, is unconstitutional. Such a ruling would disapply the doctrine of parliamentary sovereignty which has been the most fundamental underpinning Britain's unwritten constitution for centuries. No court has ever struck down a parliamentary statute.
Several influential voices are calling for the Supreme Court to do just that in the case of the Safety of Rwanda Act, on the grounds that Parliament has approved (so far) provisions in the Bill that are incompatible with the UK's obligations under international law, including the European Convention on Human Rights (ECHR) and the international law principle of non-refoulement which is enshrined in many sources of international law by which the UK accepts it is bound, including the Refugee Convention, and which is arguably also a principle of customary international law.
In effect, Parliament has usurped the judicial function, as provided for in the constitutional principle of legislation and judicial powers.
"Could the Supreme Court really strike down the Rwanda Bill? Former Attorney General Sir Geoffrey Cox appears to think so. In a letter to the Telegraph written with other senior barristers, he urges support for the Government’s Safety of Rwanda Bill as currently drafted, arguing that there would be grave risks if it went even further in seeking to sideline the courts. An even tougher Bill, they say, might risk a constitutional showdown with the courts that could sound the death knell of parliamentary sovereignty. Cox and his fellow barristers say that that principle is ‘only an assumption’ that the courts have threatened to ‘revisit’ if Parliament ever did the ‘unthinkable’."
How might such a constitutional turf war play out, and who would prevail? Who should prevail?
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Post by Orac on Dec 20, 2023 10:25:51 GMT
The modern trend is for significant discretion to be democratically accountable.
In this spirit, I wouldn't want to see such 'ultimate and over-ruling power' rest anywhere without the public having some means to 'get the wielders back'.
Perhaps the addresses and bank account details of those making the judgments should be public? (joking of course). in my view the courts should not be holding such discretion.
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Post by The Squeezed Middle on Dec 20, 2023 10:43:13 GMT
In effect, Parliament has usurped the judicial function, as provided for in the constitutional principle of legislation and judicial powers... You could equally argue that the courts have usurped parliaments function. It's parliaments job to make law on behalf of the electorate and if that function is undermined by the courts then we have a serious constitutional issue and one that brings our democracy, such as it is, into question. So no, I don't think that the (unelected and largely unaccountable) courts should hold that power. |
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Post by Dan Dare on Dec 20, 2023 10:48:42 GMT
I can't help recalling that the last time the establishment took on Parliament it lost. Very badly.
But then do present-day parliamentarians have the right stuff?
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Post by oracle75 on Dec 20, 2023 11:57:34 GMT
If Parliament so wishes it can change the law, under which the courts must act.
Parliament has always had this right and is a principle function of democratic sovereignty.
Mt own interest is in the complete lack of protection for those kidnapped migrants by the British government if there is a coup. I suppose the UK will put selective memory to the fore, as it did Windrush migrants.
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Post by Orac on Dec 20, 2023 12:21:53 GMT
If Parliament so wishes it can change the law, under which the courts must act. Parliament has always had this right and is a principle function of democratic sovereignty. The complication is that it's not really a matter of law, it's a matter of discretion. It is probably impossible (or pretty difficult) to write law that has intent which is completely impervious to interpretation. It looks like this might be heading into a constitutional crisis arena - which is probably where it properly belongs |
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Post by Dan Dare on Dec 20, 2023 12:31:43 GMT
The legal establishment certainly appears to be girding its loins for a fight. My concern is that Parliament as presently constituted may just roll over and submit. Only just over half its member are white men these days.
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Post by seniorcitizen007 on Dec 20, 2023 16:35:15 GMT
From the New York Times:
He’s a Brutal Dictator, and One of the West’s Best Friends
His grip on power is nearly unassailable. Since becoming president over two decades ago, he has extended constitutional term limits, shut down the free press and clamped down on dissent. Reporters have been driven into exile, even killed; opposition figures have been imprisoned or found dead. His country has been reduced to tyranny.
But this dictator isn’t a pariah, like Vladimir Putin of Russia or Bashar al-Assad of Syria. Instead, he’s one of the West’s best and most reliable friends: Paul Kagame, president of Rwanda. Since coming to power in 1994, Mr. Kagame has won his way into the West’s good graces. He’s been invited to speak — on human rights, no less — at universities such as Harvard, Yale and Oxford, and praised by prominent political leaders including Bill Clinton, Tony Blair and the former U.N. general secretary Ban Ki-moon.
It doesn’t end there. Mr. Kagame’s Western friends include FIFA, which held its annual congress at a shiny sports complex in Kigali in March, and the N.B.A., whose African Basketball League plays in Rwanda. Europe’s largest carmaker, Volkswagen, runs an assembly plant in Rwanda, and major international organizations such as the Gates Foundation and the World Economic Forum are close partners. Western donors finance a whopping 70 percent of Rwanda’s national budget.
But perhaps Mr. Kagame’s greatest endorsement is a deal with the British government to receive asylum seekers deported from Britain. This controversial bargain, which may contravene international law, has cemented Rwanda’s reputation as a steadfast partner of Western countries. Far from the authoritarian holdout it is, Mr. Kagame’s Rwanda is now hailed as a haven for people fleeing dictatorship.
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Post by Equivocal on Dec 22, 2023 8:26:15 GMT
The legal establishment certainly appears to be girding its loins for a fight. My concern is that Parliament as presently constituted may just roll over and submit. Only just over half its member are white men these days. I think the point being taken by Cox is that if the Bill is amended to 'go further' than it does as drafted, then Parliament will almost certainly have crossed the 'unthinkable' line. As drafted, the Bill doesn't, in Cox's opinion, cross the line.
In my opinion, the Bill doesn't appear to respect the principle of separation of powers in that, should the Bill become law, a 'legal fact' derived from evidence will have been supplanted by political opinion.
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Post by dappy on Dec 22, 2023 8:51:21 GMT
Cox is my MP. He is of the nodding dog tendency loyally voting for whatever nonsense the Tory Government proposes. This letter is undoubtedly written with the full support of Sunak as a warning shot to the populists. All part of the Tory civil war.
Should the Government of whatever political colour act within the law to answer the question raised in the OP? Do we really have to ask that question? Of course it should.
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Post by Dan Dare on Dec 22, 2023 9:14:16 GMT
Cox is not the only legal professional questioning the constitutionality of the Rwanda Act as a little light googling will reveal. The difference is that Cox gives it a 'pass' in its current form while many others do not.
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Post by Equivocal on Dec 22, 2023 9:45:04 GMT
Cox is not the only legal professional questioning the constitutionality of the Rwanda Act as a little light googling will reveal. The difference is that Cox gives it a 'pass' in its current form while many others do not. The one that caught my eye was Sumption's criticism. He's normally on the other side of the judicial activism debate. |
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Post by dappy on Dec 22, 2023 10:28:12 GMT
Cox is not the only legal professional questioning the constitutionality of the Rwanda Act as a little light googling will reveal. The difference is that Cox gives it a 'pass' in its current form while many others do not. Cox is just an advocate of whatever current policy is. If they changed the policy tomorrow to forcing asylum seekers to stand on one leg shouting “wibble” he would write another article explaining why unilimbed wibbleness is the only possible workable policy. Ignore him. |
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Post by Dan Dare on Dec 22, 2023 10:29:44 GMT
Should we ignore the others too?
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Post by johnofgwent on Dec 22, 2023 19:59:15 GMT
There is a growing background muttering in the legal profession about the possibility that the Supreme Court will rule that the Act, which is still progressing through Parliament, is unconstitutional. Such a ruling would disapply the doctrine of parliamentary sovereignty which has been the most fundamental underpinning Britain's unwritten constitution for centuries. No court has ever struck down a parliamentary statute.
Several influential voices are calling for the Supreme Court to do just that in the case of the Safety of Rwanda Act, on the grounds that Parliament has approved (so far) provisions in the Bill that are incompatible with the UK's obligations under international law, including the European Convention on Human Rights (ECHR) and the international law principle of non-refoulement which is enshrined in many sources of international law by which the UK accepts it is bound, including the Refugee Convention, and which is arguably also a principle of customary international law.
In effect, Parliament has usurped the judicial function, as provided for in the constitutional principle of legislation and judicial powers.
"Could the Supreme Court really strike down the Rwanda Bill? Former Attorney General Sir Geoffrey Cox appears to think so. In a letter to the Telegraph written with other senior barristers, he urges support for the Government’s Safety of Rwanda Bill as currently drafted, arguing that there would be grave risks if it went even further in seeking to sideline the courts. An even tougher Bill, they say, might risk a constitutional showdown with the courts that could sound the death knell of parliamentary sovereignty. Cox and his fellow barristers say that that principle is ‘only an assumption’ that the courts have threatened to ‘revisit’ if Parliament ever did the ‘unthinkable’."
How might such a constitutional turf war play out, and who would prevail? Who should prevail?
Ok, now what i know about the relationship of parliament and tbe courts comes from an expensive lesson learned in about 2001 which to be fair i said at the time would turn out the way it did and we should have followed Bernie Eccleston’s path and bribed Blair instead…. But Mr Justice Burton proved two things 1) the judiciary are a bunch of utter tossers who have no idea of reality, and 2) the courts see it as their job to take statute law and test its applicability to their twisted vision of life as the court thinks it should be. 3) They do see it as their duty to do exactly what you say they have no right to do, and tell parliament to take their statutes and shove them where not even a colonoscopy will find them. So yeah, my experience of the Royal Courts of Justice is that the judges all the way from there, all the way up to the Law Lords, all think their job IS to tell Parliament what they can and cannot do. And pretty much every one of then in post now was put in place by Blair’s pal Derry Irvine from the selection that chose to pay him a bribe to party funds for a what was it £50 or £100 a plate dinner ? he organised while Lord Chancellor, just before selecting barristers to be judges …. So hardly surprising that the current lot, who like every other judge can never be removed from office by the grim reaper, hate tory statute law. They paid the Labour appointee and blair’s best nate to get on the ladder to their current job |
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