Rt Hon Lord Lilley

    Written for The Telegraph.

    Should we adopt the Iranian system of rule by a Council of Guardians – wise Ayatollahs – who oversee what elected representatives must, may and cannot do, to ensure government policies accord with the Ayatollahs’ interpretation of sacred texts?

    No takers for that in Britain you may think. But in fact the UK is well on the way to succumbing to such a system. In Iran it was established by the Islamic Revolution overthrowing the Shah. Here it is being imposed by a stealthy constitutional revolution.

    Our unelected, unaccountable guardians are lawyers, giving themselves power to constrain what elected representatives can and cannot do. Their sacred text is not the Koran but the European Convention of Human Rights which, they assert, Parliament cannot override or resile from, but which judges declare to be a “living instrument” – open to their subjective interpretation. This week, we will find whether these legal Ayatollahs have already gained the power to stop Parliament passing the Rwanda Bill.

    For a thousand years in Britain, law has been made by Parliament and implemented by the Courts. If the Courts interpret laws in ways that Parliament did not intend or feels is out of line with values of the public who elect it, Parliament can change the law. That is what Parliamentary sovereignty means.

    But senior judges and lawyers now assert that Parliament is not sovereign: it can no longer change the law if our legal Ayatollahs say it conflicts with the spirit of human rights and other laws as subjectively interpreted by them and their international confreres.

    If we allow this to go unchecked, it will be hugely damaging not just for democracy but for the rule of law. We will have moved from the rule of law to the rule of lawyers.

    The “rule of law” means that laws made and approved by our elected representatives are impartially implemented by the courts and all of us – citizens, public officials, ministers, police – are subject to those laws. But if we don’t like a law, we can try to persuade our elected representatives to change it.

    The “rule of lawyers” means that unelected and unaccountable judges can impose their opinions and there is nothing we can do about it. That appeals to (some) lawyers just as Iran’s system appeals to Ayatollahs. But ultimately it will erode public support for the rule of law. Moreover, it will inevitably lead to the politicisation of the judiciary.

    If lawyers can make essentially political judgements based on their subjective opinions which elected representatives cannot remedy, the appointment of judges becomes a hugely political issue. That is the case in the US – where the Supreme Court can interpret the Constitution to overturn Congressional decisions. Do we want to be like America, where two vacancies during Trump’s first term gave him the chance to appoint judges whose political opinions he liked and who were young enough to impose those views for decades to come?

    This week, as the Safety of Rwanda Bill reaches its final Parliamentary stages, lawyers will deny Parliament’s right to assert that Rwanda is a safe country for asylum seekers. Yet in 2004 – with no outcry – the Blair government legislated to create an irrebuttable presumption that a list of countries were safe. Our highest courts upheld this and declared it compatible with the Human Rights Act.

    Our would-be Ayatollahs will also assert that Parliament cannot empower Ministers to reject demands by the European Court of Human Rights to further delay sending asylum seekers to Rwanda. Yet the French government ignored the Court and returned an Uzbek citizen to his homeland. The international legal order has not collapsed.

    We are often told that the Convention merely codified human rights which had evolved in Britain since Magna Carta. So it would change nothing for us while obliging historically less fortunate nations to emulate us. A patronising view, and also untrue: it was the first step empowering lawyers to make laws, unaccountable to any electorate and unamendable by Parliament, particularly when they gave themselves the right to treat the document as a “living instrument”.

    No human rights are absolute. Freedom of speech is already significantly constrained. Rights to asylum must be balanced against saving lives by deterring dangerous channel crossings and the right to protect our borders. Balancing different rights is intrinsically political and best left to Parliament, not the courts.

    If the European Convention of Human Rights cannot be reformed to recognise this, reaffirming the rule of law, not rule by lawyers, may ultimately involve Britain leaving. Meanwhile, Parliament should have no qualms about enacting a Bill intended to save lives and implement the democratic desire to control immigration.

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