Welcome to the Legal Futures Forum blog! We aim to untangle complex legal issues and see how they affect you. Today, we’re diving into the heart of how the UK is run: our constitution.
Unlike countries like the USA or Germany, the UK doesn’t have a single, written document called ‘The Constitution’. Instead, we have a collection of laws, legal cases, and conventions (long-standing traditions) that have developed over centuries. This is often called an ‘unwritten’ constitution. People used to praise it for being flexible, but recent events have put it under pressure, making many ask if it’s still fit for purpose. This post will look at two recent constitutional moments to explore what's going on.
The Courts vs The Government: The Prorogation Case
What happened?
In late summer 2019, the UK was in the middle of a political storm over Brexit. Prime Minister Boris Johnson’s government decided to suspend, or ‘prorogue’, Parliament for five weeks. The government said this was a normal procedure to prepare for a new parliamentary session. However, critics argued it was a move to stop Members of Parliament (MPs) from debating and blocking the government's Brexit plans.
This raised a huge constitutional question: did the Prime Minister have the power to shut down Parliament for so long, and at such a critical time?
The Legal Showdown
The case ended up at the UK Supreme Court. The key issue was whether the Prime Minister's advice to the Queen to prorogue Parliament was something judges could even rule on. Historically, courts have stayed away from 'political' decisions. However, the Supreme Court decided to hear the case.
In a historic ruling, R (on the application of Miller) v The Prime Minister [2019] UKSC 41, twelve judges unanimously decided that the prorogation was unlawful. Their reasoning was simple but powerful: the suspension of Parliament was not normal. It was for such a long period, and without any good reason, that it had the effect of preventing Parliament from carrying out its constitutional role of holding the government to account. As Lady Hale, the President of the Supreme Court, stated, "the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification" (para 50).
Why Does It Matter?
This case was a major constitutional moment. It showed that while the government has certain powers (known as prerogative powers), these powers have limits. The courts showed they were willing to step in to protect the core principle of parliamentary sovereignty – the idea that Parliament is the highest authority. The ruling was seen as a vital check on the power of the government, confirming that not even the Prime-Minister is above the law. This relates to a fundamental principle called the rule of law, which means everyone, including the government, must act within the law.
Parliament vs The Courts: The Rwanda Plan
What happened?
More recently, another constitutional clash has unfolded, but this time the roles are almost reversed. The government’s plan to send certain asylum seekers to Rwanda has been at the centre of legal and political debate.
Human rights groups and others challenged the policy, arguing that Rwanda was not a safe country to send people to. They argued there was a risk that people sent to Rwanda could be sent back to their home countries where they might be in danger, a process known as 'refoulement'.
The Legal Showdown
Again, the case went to the Supreme Court. In November 2023, the court ruled in R (AAA (Syria)) v Secretary of State for the Home Department [2023] UKSC 42. The judges agreed that the Rwanda plan was unlawful. They looked at the evidence and concluded there were "substantial grounds for believing that there was a real risk" that asylum seekers sent to Rwanda would be returned to their home countries.
This put the government in a difficult position. The highest court in the land had said its flagship policy was illegal.
Why Does It Matter?
The government’s response tested a different part of the constitution. Instead of changing the plan to make it lawful, the government introduced a new Act of Parliament: the Safety of Rwanda (Asylum and Immigration) Act 2024.
This Act does something extraordinary. It simply declares in law that Rwanda is a safe country. Section 2 of the Act requires that every "decision-maker" including courts and tribunals "must conclusively treat the Republic of Rwanda as a safe country". In other words, Parliament has passed a law to override the Supreme Court's factual assessment.
This is a stark demonstration of parliamentary sovereignty. In the UK system, Parliament is the supreme law-making body and, in theory, can pass any law it wants (Dicey, 1885). The Rwanda Act shows this principle in action.
However, this also raises serious questions about the rule of law. Some legal experts, like Professor Mark Elliott, have argued that the Act puts the government in conflict with the judiciary by telling courts to decide cases on the basis of a "statutory fiction" rather than the evidence before them (Elliott, 2023). It essentially asks the courts to ignore reality as they have found it. This creates a tension between the principle that Parliament is supreme and the principle that our legal system should be rational and based on facts.
Conclusion: A Constitution Under Strain?
These two cases show the UK constitution being pulled in different directions. The Miller prorogation case showed the courts stepping in to protect Parliament from an overreaching government. On the other hand, the Rwanda saga shows Parliament pushing back, using its ultimate power to overrule a decision by the courts.
There are no easy answers here. A flexible, unwritten constitution can adapt to new challenges, but these events suggest it is under significant strain. They raise fundamental questions: Who should have the final say? Where is the right balance of power between the Government, Parliament, and the Courts? These are not just abstract legal questions; they affect the rights of individuals and the way our country is governed. As the UK continues to face new challenges, the debate about how our constitution works, and whether it needs to be written down, is likely to become even more important.
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References
Dicey, A. V. (1885) An Introduction to the Study of the Law of the Constitution. London: Macmillan.
Elliott, M. (2023) ‘The new Rwanda Bill: A constitutional analysis – and a warning’, Public Law for Everyone blog, 7 December. Available at: [https://publiclawforeveryone.com/2023/12/07/the-new-rwanda-bill-a-constitutional-analysis-and-a-warning/](https://publiclawforeveryone.com/2023/12/07/the-new-rwanda-bill-a-constitutional-analysis-and-a-warning/)
R (on the application of Miller) v The Prime Minister [2019] UKSC 41.
R (AAA (Syria)) v Secretary of State for the Home Department [2023] UKSC 42.
Safety of Rwanda (Asylum and Immigration) Act 2024. c.8. Available at: [https://www.legislation.gov.uk/ukpga/2024/8/contents/enacted](https://www.legislation.gov.uk/ukpga/2024/8/contents/enacted)
