Braverman’s fight with the Lords over migration laws is unconstitutional
Suella Braverman is trying to delegitimise the House of Lords’ efforts to amend her migration laws, saying the Lords have to respect the will of the British people. This strategy is dangerous, writes Eliot Wilson
In 1910, the United Kingdom went to the polls with the Liberal government campaigning under the slogan of “The peers vs the people” as they sought to pass Lloyd George’s radical Budget. When his proposals were rejected by the House of Lords, the government appealed over their heads to the electorate. Keep this precedent in mind.
Last week, the current government’s legislation on immigration endured a stormy time in the House of Lords. The Illegal Migration Bill would allow those who arrive in the UK illegally to be removed, either to their country of origin, or to an approved third country such as Rwanda. It’s explicitly designed to stop the illicit flotillas of “small boats” which are bringing ever-increasing numbers of hopeful immigrants across the English Channel.
The home secretary, Suella Braverman, admits freely – almost gleefully – that the bill will push “the boundaries of international law”, but the prime minister has called it “tough, fair and necessary”. Conversely, the UN Refugee Agency has called it “a clear breach of the Refugee Convention”, and respected legal commentator Joshua Rozenberg has warned it could contravene the European Convention on Human Rights.
Former senior police officer Lord Paddick of the Liberal Democrats told the Lords that the bill would “undermine the rule of law”. The archbishop of Canterbury, Justin Welby, argued it was “morally unacceptable and politically impractical”. Even the King is supposed to have described it privately as “appalling”. Paddick tabled a “reasoned amendment” to reject the bill: although it was defeated by 179 to 76, this is serious stuff. A government bill has not been lost at its second reading in either House since 1986, and not in the Lords since the late 1940s. The nuclear button is primed, if not yet pressed.
The bill will probably encounter stiff resistance as the House of Lords considers it in detail. Committee stage is not time-limited in the second chamber, and the government anticipates genteel but determined trench warfare. To pre-empt this, Braverman has invoked the spirit of 1910. She has warned the Lords not to frustrate “the will of the British people” and reminded them that the legislation was a “manifesto commitment in 2019”. Her intention is as obvious: to set up another struggle between “the Peers and the People”.
This attempt to put the House of Lords at loggerheads with the electorate is reckless, high-handed and constitutionally ignorant. The only obligation on the Lords, under the Salisbury Convention developed after the Second World War, is not to stop or unduly delay the passage of legislation which fulfils a manifesto promise made by the government. Even if the Illegal Migration Bill falls into this category – which requires an imaginative reading of the 2019 manifesto – the House of Lords has every right to seek to amend the draft text and to do so at a reasonable pace. The current parliamentary session will run until the autumn, so there is no hurry yet.
But Braverman is hinting at a more sinister intention. By invoking the supposed approval of the British people and underlining the fact that the bill was passed by the elected House of Commons, she is attempting, almost casually, to delegitimise the unelected House of Lords and present it as an undemocratic obstacle to her proposals.
That is not how things work. Every part of the parliamentary process is valid and the second chamber is designed to scrutinise legislation and amend where necessary. To suggest that a specific measure somehow represents the will of the people – and should therefore be expedited – is dangerous. It risks shortening even further the brisk journey from hastily conceived headline to statute book. It’s also unclear whether the government has the support of the electorate for these precise measures: opposition to immigration has been falling in recent years, and the public’s confidence in any measures to control numbers is low.
We live in a representative democracy, not one which uses a phone-in public vote. The legislative process is a reflection of public opinion, but also of the considered views of parliamentarians. Trying to short-circuit the system denies legitimate scrutiny and makes bad laws.
The home secretary may still be high on the crudely populist fumes which thrust her into the political front line less than a year ago, but she has no special insight into voters’ minds, and no authority to try to menace Parliament. She would do well to reflect on the scalps of her predecessors – Amber Rudd, Kenneth Clarke, David Blunkett – which have already been claimed by dealings with the immigration system, and consider a more conciliatory stance, however uneasily it sits with her nature.