With Ken Clarke’s warning ringing in our ears, we must ask: When does democracy turn into dictatorship?

At a time when Donald Trump and Joe Biden are giving old age a bad name, it is refreshing to see Ken Clarke, now ensconced in the House of Lords at the age of 83, reminding us that there is such a thing as an elder statesman – and you get to be one by talking common sense.

Always robust and lively, he’s not quite as mobile as he was – but that acute political mind is as keen as ever. He tells it like it is. He also tells the government that it is making a fool of itself over the Rwanda plan and is threatening grievous bodily harm on our poor old battered constitution. He got to the heart of the matter: warning that overturning a Supreme Court ruling could see the UK slipping into an “elected dictatorship”.

He has heard, as we all have, quite enough self-serving nonsense about the “sovereignty of parliament” and the “will of the people”. The doctrine of parliamentary sovereignty is a complicated one – and obviously up for debate – but it should never be the case that a prime minister with a majority in the Commons (normally achieved on a minority of the vote) can do what he or she wishes. Using the argument that the Commons is “sovereign” and it is therefore the “will of the people” doesn’t wash.

This is, in fact, one of the many things that have gone wrong since the Brexit referendum. Parliamentary democracy is more than just having an election every four or five years and then allowing a government to do what the hell it likes. In a pluralistic parliamentary democracy with a mostly unwritten constitution, there are many checks and balances, conventions and tacit agreements and codes of conduct that determine the limits of executive power. They can flex and evolve, but they cannot be dismissed because a government is in a hurry.

It is exactly as Clarke puts it: “The sovereignty of parliament has its limits, which are the limits of the rule of law, the separation of powers and what ought to be the constitutional limits on any branch of government in a liberal democratic society such as ours.”

I’d say there are many such limits in a free society – and they are sometimes, and tellingly, unpopular with the government of the day. To name a few: the independent judiciary; an impartial civil service governed by its own codes; the House of Lords as a revising chamber and constitutional guardian; free and democratic trades unions; the devolved administrations; parliamentary committees; the media (especially the BBC); international laws and conventions; local government; the Magna Carta, the Bill of Rights and the Human Rights Act; the universities administered under royal charter; the corporate world and the third sector; the churches and religious groups; armed forces with their loyalty to the nation, not politicians; even the monarchy in its constrained, constitutional form.

Those are the formal, informal and habitual elements of Britain’s living constituency. As Clarke points out, without them, the UK would be reduced to an “elected dictatorship”, a concept associated with one of the wisest legal and political minds to grace the country in the past century: Quintin Hogg, aka Lord Hailsham. He warned of such tendencies in the 1970s, when, ironically, there were also fears about Britain becoming ungovernable.

We saw the dangers of what can go wrong when a perverted doctrine of parliamentary sovereignty was used by Boris Johnson to attempt to subvert the Commons’ powers and cut it out of the Brexit process in 2019. He asked the Queen to prorogue parliament, placing her in an invidious position – yet obeying precedent, she acceded to his request. Then, famously, his attempt was declared unconstitutional, null and void by the Supreme Court. Johnson had to find a more constitutional path to getting Brexit done.

So, a deeply flawed and perverted version of parliamentary sovereignty can be used to attempt to bestow near-dictatorial powers on a premier in the British system. Yet the present Rwanda Bill seeks to equip Rishi Sunak with the ability to redefine reality. Clarke, a lawyer by training, goes straight to the centre of the problem in his arguments – that the Bill seeks to overturn a finding of fact made by the UK Supreme Court.

After weighing all the evidence, the Court determined that there was nothing wrong with sending refugees to a third country for processing, provided it was safe. Rwanda isn’t safe, mainly because there’s a danger that the refugees would be sent back home to their death – whatever our treaty with them said. That was the fact found by the court.

Now, the government is asking parliament to declare that that fact is wrong – and that Rwanda is safe. It as if parliament is being asked to redefine dogs as cats, or black as white. Or, that it could – as Clarke warns us, chillingly – that someone found innocent in the courts and set free could be declared guilty by passing an act of parliament (as is now happening – albeit in reverse and for a good cause – with the wrongfully convicted sub-postmasters).

So the sovereignty of parliament doesn’t mean it is able to alter reality. That is the ultimate limit. If the government wanted to abolish the law of gravity it could, theoretically, eventually ram it through both houses of parliament and persuade the king to give it royal assent, but apples would still fall from the trees.

In any case, I’ll leave the political advice for Sunak’s government to Lord Clarke: “They have based far too much on this Rwanda policy, putting it at the heart of their political ambitions for the election. To be able to turn around and say that they would have stopped the boats but the unelected House of Lords, the Liberal Democrats and the metropolitan elite stopped them would save this government from what I think are their follies in crashing on with this policy in this way.”

What a clever tactic that would be, but I fear the Tory leadership of today no longer listens to the likes of Ken Clarke. It’s their funeral...