At the time of this writing the spat between Nigel Farage and Gerard Batten has reached fever pitch, with Farage actually resigning from Ukip because of Batten’s anti-Muslim policies. “There is a huge space for a Brexit party in British politics,” writes Farage, “but it won’t be filled by Ukip”. Both Farage and Batten are passionate believers in Brexit and both reject Theresa May’s vaunted Brexit “deal” – but neither of them shows any sign of knowing how to achieve a true Brexit.
In my opinion they are both equally wrong. Two of the chief objectives of Brexit are to reduce immigration and, above all, to take back control. But neither Farage nor Batten has any idea of how to achieve these objectives. Batten’s slogan, “Brexit means exit”, is no more helpful than Theresa May’s “Brexit means Brexit.”. And Nigel Farage’s threat “to don khaki, pick up a rifle and head for the front lines” if Brexit is not delivered, is simply irresponsible.
The power of the domestic UK courts
What neither Farage nor Batten understands is that, whether there is a “soft Brexit” or a “hard Brexit”, and whether the UK leaves the EU with a “good deal”, a “bad deal” or no deal at all, immigration will never be controlled as long as the courts have the final say on asylum seekers’ claims and on the deportation of suspected terrorists. Which courts are these? Not the European Court of Justice, nor even the European Court of Human Rights sitting in Strasbourg -– but the UK’s own domestic courts, which are not obliged to follow Strasbourg rulings but which (with some notable exceptions) have become infected with “political correctness”.
“Deportation with Assurances” thwarted
The current threat level for international terrorism in the UK is SEVERE – meaning that a terrorist attack is highly likely. How did these people get into Britain in the first place? Most come from outside the EU, and illegally, so EU freedom of movement rules cannot be blamed. If caught, all that these migrants have to do is throw away their identity documents – then the courts refuse to allow them to be deported. Or else they claim (as they almost always do) that if returned to their own country they will suffer torture, or worse.
The British Government has numerous agreements with third-world countries to facilitate “deportation with assurances” (DWA), but the courts — yes, the UK’s domestic courts — generally still refuse to let the people concerned be deported, on the ground that this would amount to a violation of their rights under Article 3 of the European Convention on Human Rights (ECHR). Which is a completely wrong interpretation of the Convention. Why, after all, should the UK be responsible for the conduct of foreign countries? The ECHR itself makes it clear that signatory states (like the UK) are responsible solely for their own conduct. (See Michael Arnheim: A Practical Guide to your Human Rights and Civil Liberties, 2017).
The long and the short of it is that the government is repeatedly hamstrung by unelected and virtually irremovable judges who are not answerable to anybody. Is there anything that can be done to counter this serious affront to democracy?
Would it help for the UK to pull out of the ECHR or repeal the Human Rights Act? Perhaps. However, neither of these possible solutions is even mentioned in Ukip’s Interim Manifesto of September 2018.
But there is in fact a much simpler solution, which is ready to hand and could be implemented at any time — namely, the revocation by Parliament of any – and I do mean any — decision of any court for any reason at all. To his credit, Lord Neuberger alluded to this important power in two lectures delivered shortly before his retirement as President of the UK Supreme Court in 2017.
The right of revocation is based on the Sovereignty of Parliament, the bedrock principle of the UK Constitution. The best known exercise of this nuclear power is the War Powers Act 1965, which revoked the decision of the House of Lords (then the highest court in the land) in the case of Burmah Oil v. Lord Advocate (1964) – which was not a bad decision from a legal point of view but which was revoked simply to save the government money. There is now no shortage of cripplingly bad court decisions crying out for revocation, but which Theresa May’s government lacks either the knowledge or the guts to revoke.
Ukip is evidently equally unaware of the existence of the power of revocation. It does not figure in the Interim Manifesto of September 2018 and has, to my knowledge, never been mentioned by Nigel Farage, Gerard Batten or anyone else in Ukip. Yet the exercise of this nuclear power is the only way in which it would be possible to take back control from those who now have a stranglehold on government policy — namely the domestic UK judges.