Some of my parliamentary colleagues, particularly those who are lawyers, get frightfully upset when I criticise judicial decisions. They believe that the separation of powers -political from judicial- is so sacrosanct that no politician should intrude by criticising the judgements of the courts.
I disagree. As an elected politician it is quite proper for me to give voice to the frustration that so many constituents express to me about judicial decisions, whether it is the leniency of sentences or ‘high politics’, where courts have frustrated the will of Government -which should properly be a matter for Parliament.
There is enormous anger about leniency in sentencing. More than half our most prolific offenders -with at least 45 previous convictions- are never sent to prison. This is the reason that Parliament has increasingly been intervening with new laws to set mandatory minimum sentences to bind the judges, as we will again on 28th November with the second reading of the Criminal Justice Bill.
Greater still is the frustration with Judicial intervention in the most contentious political issues of the day. I expressed my robust rejection of the authority of the Supreme Court in this column in my blog about the prorogation of Parliament back in September 2019:
Yes, it is a coup (desmondswaynemp.com)
Now we have had the judgement that the Government’s scheme to deport asylum claimants to Rwanda is unlawful, with which I profoundly disagree.
Nevertheless, I’d be the first to acknowledge that throughout history Judges have played a key role in preserving our liberty. And that an independent judiciary is an essential part of a functioning liberal democracy. In any event, we already have a solution where we believe judicial activism has gone too far.
In their decisions judges make law. If we don’t like the laws that they make, then we have the remedy in Parliament, just as we have with lenient sentencing: Statute law made in Parliament trumps law made by judges in the courts.
The problem is that it will take time, and time is running out. A bill to make the Rwanda scheme lawful would pass at speed in the Commons but would be held up by the delaying power of the Lords, where the Government has no majority. We could prorogue, and re-present the bill in the new parliamentary session, forcing it through under the Parliament Act. it would be controversial and messy, it might not be quick but it would work.
That leaves us only having to deal with the international judges whose power derives from the treaty obligations to which we voluntarily acceded. They will not be overawed by Parliament. If they intervened, we’d have to withdraw from those obligations. The PM has indicated that, if necessary, he will do so.
The Rwanda deal, as a deterrent to illegal migrants, is an essential element to successfully stopping the boats, but it is only one element. Of greater importance are bi-lateral agreements to return the migrants to their countries of origin. Our agreement with Albania, from which the greatest number were coming, has cut those numbers by 90%.
The argument is made that, were we to withdraw from the international conventions, then it would be so much more difficult to sustain and extend bi-lateral return arrangements, that we’d be a pariah and that nobody would deal with us.
I think this is nonsense. Other European countries are experiencing very much greater numbers of illegal migrants and are already following where we have led. There is a common view now that the historic conventions on refugees are completely unfit for the current reality. I’m confident that where we continue to lead, other developed nations will continue to follow.
Sir Desmond Swayne TD
