Before getting into an examination of the Safety of Rwanda (Asylum and Immigration) Bill – which has its second reading on Tuesday – let us turn our gaze west and back 170 years to Abraham Lincoln, one the greatest men of the Nineteenth Century. He was also, in his way, an Anglophile, self-taught in the English virtues of the Common Law and the language of the King James Bible.

He was also, we forget, the first Republican Party President, elected in 1860 after the Party was founded in 1854. Why was it called the Republican Party? The answer is that it had a stricter view of how the Constitution should be interpreted, according to classical Republican principles, in contrast to the Southern-dominated Democratic Party.

The matter at hand was slavery and the lawlessness which had descended in the territory of Kansas and Nebraska, where the Democrats (at that time, the pro-slavery party) argued that introducing slavery was popular democracy in action, i.e. supported by a majority of local voters there, in this case, frontiersmen. The Republicans countered that slavery was an abomination and this sort of democracy was not what was envisaged by the Founding Fathers, who expressly believed that the Constitution was drafted to ensure the majority view was implemented not directly, but via institutions, upholding certain principles and laws.

In Republican eyes, popular democracy meant chaos, tyranny and, in the end, slavery.

Long story short: the Republicans, and their greatest advocate, Lincoln, won the argument: among the voters in two Presidential elections, on the battlefield, and according to the judgement of history. Imagine if the South had won and somehow the United States or two Disunited States entered the twentieth century with 4 million slaves and Gone With The Wind was, in fact, a documentary about the defeat of the industrial North by the rural South. It is an absurd notion.

Which takes us to Rishi Sunak’s Rwanda plan. I was never a fan of this proposal as it seemed rather complicated. That said, if you accept that reducing both illegal and legal migration, within sensible bounds, is clearly a social and political necessity, I don’t think anyone has any better ideas.

It is also, according to both Lord Sumption, and a letter organised by Sir Geoffrey Cox and three other Kings’ Counsel, legal. By contrast, the obsession of the Tory Right, Suella Braverman, and Robert Jenrick & Co, with removing any recourse to appeal of any kind, on the basis that to do otherwise would weaken the bill and to “face the red hot fury of the voters” is not. That idea can only be made legal by both withdrawing from or unilaterally blocking the operation of the European Convention of Human Rights and also repudiating ancient English legal principles which theoretically protect the rights of us all against an overmighty state. But more than that, it is to advocate a form of popular democracy that overturns or smashes up our constitutional process in the name of “the people”.

The letter from the KCs is instructive. In summary, its states that the Government’s Bill goes as far as it can without running foul of the UN Refugee Convention (part of UK domestic law) and that the Rwandan Government has insisted on this. Second, the threshold for appeals is very high and would depend on provable special circumstances, such as the individual having cancer untreatable in Rwanda.

But it is their third point which is most troubling.

“The assumption that Parliament is entirely sovereign is only that – an assumption, which the courts have long indicated could be revisited in the event that Parliament did the unthinkable. Legislation which mandated the removal of someone, without the right of appeal, despite clear evidence that this would result in them suffering death or serious and irreversible inhumane treatment, would test that assumption. And if the Supreme Court were to quash or disapply an Act of Parliament on domestic constitutional grounds for the first time, it will be impossible to put the constitutional genie back in the bottle.”

The Supreme Court website says it cannot “strike down” acts of Parliament (in apostrophes). Why are those apostrophes there? The answer is that nobody can know for sure, but very ancient pre-modern legal principles, including Habeas Corpus and the right of appeal against extraordinary action by the state, would be in play.

So, this is my fundamental concern about the Tory Right. Progressively, over the last few years, they have shifted from a position of making a reasonable argument – that we are a Parliamentary democracy, with proven institutions, a separation of powers, a limited monarchy, and a tradition of constitutional ordered liberty which can work better than the somewhat alien and bureaucratic acuis of the EU – to one which is nearly the opposite and something with which sensible people should profoundly disagree. They seemingly want to restore Divine Right, derived from the popular will, as opposed to God.

Whether through the triggering of Article 50 without thought or legal process, the Prorogation, and now this, they are more interested in smashing institutions than shoring them up, and they wish to do so on the flawed basis of “popular democracy” in action. In so doing, they have turned the rationale of Brexit on its head. It is this popular democratic concept – ironically a more European notion – which is alien to the British polity and not Mr Sunak, who is trying to tackle a thorny problem.

But I would go further. I like the British Constitution. I concede it needs a refurb and repair, but in general I think a constitutional monarchy, a sovereign Parliament, Magna Carta, the Act of Settlement (which put the independent judiciary in statute), the Acts of Union, are bloody brilliant and in fact much better than say the American or French alternatives. They suit us well and guarantee our liberties. In the end, the Tory Right have argued themselves into a thoroughly alien position which takes you, step by step, to PG Wodehouse’s character Roderick Spode, strutting about in Black Shorts, trampling over the Bill of Rights (1689) while quoting German philosophers.

In some ways, this is a world view which has more in common with Jeremy Corbyn than with conservatism. To his credit, Sir Keir Starmer understands this point and has the scars to prove it.

Do we want to risk, for the first time ever, a confrontation between the Supreme Court and an Act of Parliament, on the basis that a new piece of primary legislation is apparently irreconcilable with previous Acts, the Common Law and our international obligations? And all the while small boats continuing to wash up on the Kent Coast, discharging their desultory cargoes? No we do not. At least, I certainly don’t.

My fear is that those on the Tory Right are no longer Conservatives or really Tory. They are Right Wing nationalists, high on the humourless fumes of popular democracy. However strongly you may feel about immigration or how irritating the “elite” are or how inefficient the Civil Service is, or how out of date human rights and refugee laws have become, there is something even bigger at stake here: our constitutional order, which the Rebels have apparently ceased to respect or understand.

The author is chief executive and founder of Boscobel & Partners, an independent communications and political consultancy. 

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