This is how I like to imagine the scene in the Court of Appeal, as that court was obliged to sit late and reconsider the lawfulness of the Rwanda flight. Counsel for the Secretary of State staring desperately into his black mirror, praying for instructions – anything. The Master of the Rolls spitting fury, denouncing the incompetence of the administration that had ruined his and his colleagues’ evening off.
The morning after Boris Johnson squeaked through his no confidence vote, his allies were already setting out his plans for survival. The Prime Minister would announce such a blizzard of new laws, regulations on the NHS, a statute for the Northern Ireland trade deal, laws on weights and measures, that with this new burst of energy his administration would be transformed.
Instead, every time Johnson legislates, it makes his government seem less competent than before. This is the failure at the heart of Rwanda: that the government wants prospective refugees to believe that the scheme is so heartless that they should not come to Britain, and the courts to find that it is so kind and generous as to make no difference. A better legislator might have drafted a scheme which plausibly lacks both ways at once; Johnson has neither the skill to draft rules of that subtlety nor the patience to wait and let his opponents exhaust themselves.
For years, his ministers have been promising crowd-pleasing measures, to abolish no-fault evictions for tenants and enhance workers’ right by introducing stable contracts for gig economy workers. Each has been subject to counter-lobbying from landlords and employers. The question becomes what the law will say in detail – will each clause help the people, or only Johnson’s people? The answers are difficult, require time and thought. Again and again, the Prime Minister loses interest, postponing legislation to a future which never comes.
Johnson believes ministers should be freed from parliamentary control, upon which they will be empowered to act with unprecedented speed in response to crisis. (Hence his criticism of the NHS as a “Blockbuster” service). Yet whenever Johnson legislate in haste, he repents at leisure. We have seen that over the Northern Ireland Brexit protocol, which Johnson now derides as a shoddy piece of drafting, unfit for purposes and needing to be scrapped altogether. Maybe so – but he wrote it.
It is the same with the Covid laws which are at the heart of Partygate. Johnson says it “did not occur” to him that holding social gatherings “might have been a breach of the rules”. It is true that the Coronavirus laws were complicated.
In the first year of the pandemic, Johnson’s government introduced 66 Coronavirus regulations. Together, they were in practice a single set of rules being changed weekly, at times daily. The government was just as much correcting its own previous errors as it was taking control of the Covid-19 crisis. In our unwritten constitution, only Parliament should legislate to create a criminal offence. Under Covid, we were governed by Ministerial decree.
The enormous health crisis of Covid gave Johnson the chance to rule in exactly the way he liked: without delay, without Parliamentary scrutiny. The laws he made in these conditions of executive freedom are the same rules whose breach now makes his position untenable, and cause that sense of chaos which with every new law he accentuates.
The essential point is surely this: in 2016, under the impact of Trump’s election and the Brexit vote, the opportunities were created for a new style of government, one in which economies would retreat within their national borders, international institutions would be dismantled, and the deep structures of government and law would have to change to catch up with this new normal. But that breakthrough has not yet been consolidated on the scale (say) of the neoliberal breakthrough of 1979-80 (after which the Reagan and Thatcher victories, really did seem to change the world). So that states which have turned fully towards the new politics (Brazil, Hungary, India) are balanced by others which considered turning national-populist but have so far pulled back from the brink (the United States).
So judges, whose job is to oversee the compromises on which any society is based, look back at the populists and find them incompetent. Not the spirit of the age but representaives only of is stupidy and chaos. Against the court’s instinct to uphold the legality of whatever nonsense that ministers put before them, the judges find themselves reluctantly playing the part of the sand whose grit causes the machine to explode.
Now let us see the same process, not from the perspective of the courts, but the social movements whose interests the radical lawyers serve.
The most heartening thing about the Rwanda flight was that for the first time in a year you could see an activist culture remerging: the demonstrations outside the Home Office, the people blocking the road outside the detention centre, the circulation of the details of the company which was going to host the flight and of the businesses which trade with it. That resistance was the one force capable of consolidating this victory and ensuring that it was not just one flight but all of them that stop.
The law may well be part of this story, but what will decide whether the Rwanda scheme is scrapped is ultimately not the courts – rather it is that mobilisation of people’s willingness, that democracy of the streets on which any lasting victory depends.
For people who are interested in longer thoughts on the law, what kind of laws social movements need, and why movements need to lead the law rather than follow it, my book Against the Law: Why Justice Requires Fewer Laws and a Smaller State is out with Repeater in July.