Unworkable bills and the rule of law

I have been thinking of the impact on the rule of law of a parliamentary bill which is not expected to be implemented when it becomes law, but is passed to signal what the government would like to do if it were only possible - a kind of Alice-in-Wonderland law.

Many commentators have pointed out the difficulties of implementing the Illegal Migration Bill, if and when it becomes law.

It is not only that it comes with a big sign around its neck under Section 19 (1) (b) of the Human Rights Act 1988 (HRA), making clear that it cannot be said with certainty that it is compliant with the HRA. Our relationship with the European Convention on Human Rights is thrown into doubt, despite the government saying repeatedly it does not want to leave.

But the bill comes with practical problems. For instance, there are insufficient detention facilities and other accommodation to detain those who have arrived illegally before they are deported. It is reported that there are already around 400 UK hotels being used to house more than 51,000 asylum seekers, at a cost of more than £6m a day. Hundreds more are arriving by boats on some days.

And then there are not enough countries to take the asylum seekers on deportation - only Rwanda has signed up at present, and to a very limited number. Rwanda does not currently have the resources to process and house the very large numbers that the government would like to send.

Next there are the strange fictions on which the bill is based. Its stated purpose is ‘to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes’. Modern migration consists of difficult-to-stop waves of people on the move, currently evident in several regions of the world. It is imaginary to suppose that desperate people will sit down by torchlight on the side of the road to read complex laws in another language, and then be deterred by them from trying to arrive here.

The second fiction is that it will break the people-smugglers’ model. Yet the bill is aimed at the smuggled, not the smugglers. It is like having an Illegal Burglary Bill, where we are compelled by parliament to get rid of all our property in order to deter the burglary trade.

It seems that the bill is a performance dressed up as a parliamentary bill. It is aimed at assuaging angry voters in the run-up to the next election, to persuade them that the government is doing something.

And here we come to the rule of law. What happens when a government passes laws which are not capable of being implemented? Perhaps if there is only one, it will make no difference, if all the other laws are proper and serious.

But the problem with passing one theatrical bill is that there is a temptation to pass another. With a growing number of such bills, respect for the rule of law will slowly vanish. Parliament and the courts will become ridiculous. If laws are not intended to be implemented, why have them?

This bill may inspire the next one: the Control of Climate Bill (every citizen to change their thermometer to show a consistent temperature of 20° throughout the year, regardless of the prevailing weather)?

I have looked at some rule of law check-lists drawn up by organisations active in the field to see what they have to say about such legislation. But there is no exact match. Is it that there are no rule of law concerns, or that this is not something which has happened much before? I assume that the reality is that other governments don’t follow this route. Why would they waste the time?

The rule of law check list from the Council of Europe’s Venice Commission has the following sentence: ‘The very essence of the Rule of Law would be called in question if law appeared only in the books but were not duly applied and enforced.’ The context implies that it is talking about laws which can be enforced, but are not. But what about laws which can’t be enforced in the first place? Surely, the effect is the same.

The World Justice Project, a leading NGO in the field, cites various factors. Similar to the Venice Commission, it has a statement that ‘government regulations are effectively enforced’, on the presumed basis that they can be enforced but aren’t.

The rule of law is notoriously slippery to define. It is like ‘public interest’, which has many hallmarks and no single snappy encapsulating sentence.

It may be that a future hallmark for the rule of law will have to be that a government passes laws which are capable of being implemented and are not mere showy aspirations.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society

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