Amber Rudd confused herself with a 16th-century monarch last week, seemingly believing she has a divine right to rule, irrespective of the law. Three times , a 23-year-old asylum seeker who was cowering in a hotel room in Kabul, threatened with beheading by the Taliban. Three times she refused, thinking she knew best and the courts had got it wrong. It displayed a disdainful arrogance for the courts and the law. Unless she has an explanation, she has to go as home secretary. And the person who has a duty to see that the home secretary operates within the rule of law is the lord chancellor, David Lidington. This is as much a test of him as it is of her.
The story of Samim Bigzad is chilling. He came to the UK from in 2015. His father was already here, and suffers from severe post-traumatic stress disorder. Samim initially entered illegally, but then claimed asylum. He had worked on US construction projects in Kabul, hence the Taliban threat.
David Lidington must make it clear that this arrogant disdain for the law will not occur in the future
The Home Office refused Samim’s application for asylum. It indicated it would remove him on a date to be fixed. Just after 8am last Tuesday Samim was told he would be deported to Kabul via Istanbul by a flight leaving later that morning. His lawyers made further representations to prevent removal. The Home Office rejected them. Samim then started judicial review proceedings including seeking an application to stop his removal pending the hearing for the full judicial review. Although the approach of the Home Office was typically harsh, up to this point it had not acted unlawfully.
It was last Tuesday evening that it crossed the line into unlawfulness. At 9.53pm that night, the lawyers were notified that Mr Justice Morris had granted an injunction ordering the Home Office to take Samim off the flight to Kabul and to return him to London. The Home Office was told of the injunction immediately and had a copy of the order at 10pm that evening. At that point Samim was in transit. The plane had landed at Istanbul, and was due to take off on a connecting flight at 10.30pm for Kabul. The Home Office decided not to remove him from the plane, and Samim was flown on to Kabul.
On the face of it, the Home Office broke the order by not taking him off the plane at Istanbul. Whatever the reason was for not doing so, it should have immediately made arrangements for his return to the UK when he arrived in Kabul later that night, in accordance with the judge’s order. But it did nothing. Any doubts it might have had about what its legal duty was were laid to rest later on Wednesday afternoon when Mr Justice Jay ordered that Samim be returned to the UK as quickly as possible. For good measure, he said that the Home Office was already “prima facie” in contempt, and that any thoughts it had of seeking to vary or discharge the earlier order were not a reason for disobeying it.
Despite the absolute clarity of both orders, the Home Office again refused to obey. A third judge, Mrs Justice Lang, last Thursday, dismissed any attempt to vary the order and ordered the immediate return of Samim. She also made clear that immediate obedience was required.
Still the Home Office thought it knew best. It did nothing, and on Saturday it went to the court of appeal. It said all the orders were wrong. The appeal court gave it short shrift, and finally, the Home Office made arrangements for Samim to be flown back to the UK where .
Who did think she was? No special rules about court orders apply to her. She cannot ignore them and shop around the judges until she gets what she wants. She is like everybody else in this country. She has to obey the courts. And of all the people who have a critical duty to obey court orders, it is the executive. Without the means of holding the executive to account there is no means of ensuring that it is the rule of law that prevails, rather than rule by the decree of ministers or civil servants.
We have been here before. In 1991 the Home Office gave an undertaking not to deport an asylum seeker to Zaire because he was in fear for his life. As in this case, he was in transit and the Home Office , which had stopped in Paris. He flew on to Zaire and was never seen again, almost certainly meeting the fate he had feared. When proceedings were brought against the then home secretary, Kenneth Baker, he argued that ministers of the crown could not be the subject of contempt of contempt proceedings. The . They said that if that was right it would mean the executive obeyed the law “as a matter of grace, not as a matter of necessity, a proposition which would reverse the result of the civil war”.
Home secretaries all too often regard the courts as the enemy, standing in the way of what the minister knows to be best for the country. Maybe they do in some cases, but if home secretaries can override the courts, we are lost as a nation. Rudd’s attitude last week was exactly the same as that – get out of our way, we know best. The horrific difference is that the home secretary actually has the power to send people to their death, whereas the Daily Mail simply shouts from the sidelines.
Asylum seeker thanks judges after return to UK from illegal deportation
Rudd has showed a stunning disregard for the law. When asked, there was not a hint of explanation or apology.
In addition to her own duty, there is another figure in government charged with ensuring compliance with the rule of law – the lord chancellor. The test for former lord chancellor Liz Truss came when the Brexit judges were undermined by government ministers as seeking to thwart the will of the people. Instead of coming to the judges’ defence, which was her duty, irrespective of collective responsibility, she desperately sought instructions from the PM’s special advisers about what to do. They told her to keep quiet, and she lost her job as a result.
The test for her successor, David Lidington, has come now. He is the defender of the rule of law in the executive. He must make it clear that this arrogant disdain for the law will not occur in the future, or ensure that Rudd does so. If he does not act, I cannot see him lasting much longer than Truss did.
• Charles Falconer is a former lord chancellor