Hallowe’en, 2022
The uses made of certain law-related phrases in political discourse can be fascinating.
Take the current political row about the treatment of asylum seekers in Manston.
It appears from news reports that the current home secretary Suella Braverman and/or the previous home secretary Priti Patel failed to ensure there was sufficient accommodation for asylum seekers.
This failure was, in turn, a breach of the law – and, it is alleged, that this breach of the law was knowingly made.
In essence, the accusation is that the home secretary was told what the law was and the home secretary chose not to comply with that law.
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I do not know – and I suspect you do not know – the truth of the matter (at least not yet).
But the language in which the accusations are framed is interesting.
This is not, it seems, about human rights gone mad or “woke” or both.
It is not about a minister “taking a view” on the risk of there being a successful challenge, either by an application for judicial review or otherwise.
It is not thereby about an area of law with “grey areas” or “fuzzy edges” or whatever evasive language one can get away with.
No.
This row is about good-old, old-fashioned, domestic law “statutory duties”.
That is the sort of binary law in respect of which you either comply or do not comply.
It is not the sort of law in respect of which, for example, you take a view on whether you have acted “proportionately” or not in a particular case, and in respect of which you guess (ahem, forecast) how a court will deal with a challenge.
Where the law provides binary “statutory duties”, a government department (and indeed anyone else, including you) should not “take a view”.
You comply.
Simple as that.
The Act of Parliament says you should do [x], and so you do [x] – else you are in breach of your duty to do [x].
It is therefore not open to Braverman or any other partisan to ignore the law on the basis that it is about woke human rights and assert that the courts will strike the wrong balance for proportionality.
And this is why, in part, I think this row has reached the public domain.
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This is not about exercises of discretion in individual cases, where the home secretary or relevant official can take one view or another on a case-by-case basis.
This is wholesale non-compliance.
That is why I think officials are more jumpy than they otherwise would be.
This is not a decision to interfere with right in individual cases, but an apparent decision to disregard entire legal rules.
Perhaps the relevant home secretary did not realise or care for the distinction.
Perhaps the disdain for “individual case” human rights law has tripped over to disdain for the general rules of legal compliance with statutory duties.
Who knows.
But we have got to a point where even Home Office officials – Home Office officials! – are sufficiently alarmed by a home secretary’s proposals to disregard the law that they are contacting and briefing journalists.
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First it was individual human rights, and now it is general statutory duties.
Once you start making exceptions to the rule of law, those exceptions become wider and more troubling.
Brace, brace.
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Good piece, as usual.
I wonder if the senior civil servants are also implicated and in breach of the civil service code.
They must “ comply with the law and uphold the administration of justice”. If you request a minister to perform a statutory duty and they do not, what action are you expected to take?
Whilst looking up that requirement, I notice that ministerial approval is required for all media contact which I doubt they have.
“If you request a minister to perform a statutory duty and they do not, what action are you expected to take?
Whilst looking up that requirement, I notice that ministerial approval is required for all media contact which I doubt they have.”
I suppose that in extremis, briefing without the express permission of the minister your’e briefing about, is the only choice available to them, and – in my view – to be commended.
We need whistleblowers in situations like this.
Interesting blog, thanks! In case you are not aware, similar breaches of the adequate support of asylum seekers in the Netherlands have also occurred. Earlier in Oct there was a courtcase in which the Dutch gov was told to create sufficient spaces of quality, see here https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Rechtbanken/Rechtbank-Den-Haag/Nieuws/Paginas/Vorderingen-Vluchtelingenwerk-Nederland-tegen-de-Staat-en-het-COA-grotendeels-toegewezen.aspx
This judge ruling is being contested in an appeal, case TBC.
In both cases the treatment of humans is disgraceful and illegal. How to ensure every asylum seeker gets the treatment and support they are entitled to is a different matter alas. Human decency is going downhill in many ‘democratic’ countries…
Popular media reports on the Dutch case here:
https://www.nu.nl/asielcrisis/6228179/rechtbank-doet-uitspraak-over-ondermaatse-noodopvang-van-vluchtelingen.html
https://nos.nl/l/2447266
Very interesting and equally depressing.
East Sussex County Council, ex parte Tandy [1998] 2 All ER 769 (HL)
Although this ruling related primarily to the statutory obligations of a local authority, would I be right in assuming the same principle applies to a government department?
Even more fascinating if the Home Secretary involved in this possible breach of statutory duties was previously Attorney General, whose role includes being the Government’s principal legal adviser
So let me get this straight. This government (well, the one that started with Boris Johnson as PM) wants to spend billions on prisons to lock up even more people who are thought to have “broken the rules” or ignored the law in some way,
And yet, it seems that several of the major government figures seem themselves to have a mindset that they can ignore the rules and break the law, willy nilly.
Ignorance of the law is not considered an excuse even for the rest of us non-experts, but some of these people are lawyers and really ought to know better. Or do they just think the law doesn’t apply to them?
It seems incredibly hypocritical that these people who condemn others for law-breaking are doing so themselves. Now where have I heard that before?
For almost every action I see from this (or…any recent) government, I am forcibly reminded of the Wilhoit quote:
> Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.
This particular instance does feel a bit like they’re taking the piss, though.
If the Home Secretary breaks the law, what are the ramifications? Which laws has she broken, what are the punishments for breaking those laws, and who is responsible for enforcement? Ministers don’t resign after breaking the law anymore (see fixed penalty notice: Johnson, Boris; Sunak, Rishi).
If a civil servant allows an illegal situation to persist, or assists the Minister in doing something illegal, do they face any kind of reprimand? I’m guessing that “just following orders” is not a defence.
“If a civil servant allows an illegal situation to persist, or assists the Minister in doing something illegal, do they face any kind of reprimand?”
A situation which epitomises “between a rock and a hard place” – ultimately there’s no formal route open to a civil servant who finds himself in this situation except to go with his conscience, and – perhaps – to “go public”.
“I’m guessing that “just following orders” is not a defence.””
It should be – the buck should stop with the minister in such cases.
But given this lot’s predilection for throwing civil servants under the bus, normal rules apparently don’t apply…
It should be possible for a whistleblower in these circumstances to contact the Chair of the relevant Select Committee. Isn’t this what happened after the Afghanistan FCDO debacle in Aug 2021? But perhaps Raphael Marshall had resigned from the FCDO before he contacted the Foreign Affairs Committee.
As an aside, in her book Albert Speer: His Battle with Truth, Gitta Sereny says (top, p. 256, Picador paperback):
“The familiar “obedience to orders” defence advanced at Nuremberg has been totally refuted by the virtually inexhaustible German war archives, which have over the last few years supplied diligent historians with many examples of successful protests and requests for transfer from the murder units” – despite threats to murder the protesters and requesters themselves.
Ture, true – but the principle of ministerial accountability still stands here: The Ministerial Code is explicit that:
“5.1 Ministers must uphold the political impartiality of the Civil Service, and not ask civil servants to act in any way which would conflict with the Civil Service Code and the requirements of the Constitutional Reform and Governance Act 2010.”
And:
“5.2 Ministers have a duty to give fair consideration and due weight to informed and impartial advice from civil servants, as well as to other considerations and advice in reaching policy decisions.”
https://www.gov.uk/government/publications/ministerial-code/ministerial-code#ministers-and-civil-servants
Ministers are supposed to take on board officials’ advice; and not then blame them when they don’t, and things go wrong.
“Supposed to” is the operative phrase there, of course.
I know, I’m not saying the UK is like Nazi Germany. My post was as I said an aside, in fact arising from the said book I’m currently reading. But nevertheless worth reflecting on.
Perhaps I haven’t made my point clearly, Alison – I’m simply suggesting that regardless of the opinion of the author you cite, “I’m only following orders” is in fact a legitimate defence in the circumstances Civil Servants might find themselves in, because that’s how the system is designed to work.
I’m definitely not drawing parallels between the UK and Nazi Germany.
No, you hadn’t made your point clearly but have now. The circumstances are so different but your phrase corresponded with what I was reading and therefore rang a bell, which I think has turned out to be a red herring albeit interesting in itself.
All of which begs the question – if Government ministers are going to continue to ignore their statutory duties (and, therefore, break the law), what can be done to hold them to account? I can’t see Raab as Justice Secretary or Prentis as AG doing anything about it (even though they shoul). Voting them out at the next GE (as much as two years hence) is of no help to those people in Manston who are today being impacted by Braverman’s (in)actions.
Would it be possible to bring a judicial review against the AG, for wilful failure to enforce the law? (Assuming of course that the fact of the HS wilfully breaking the law can be shown.) The challenge may fail but it would shine a spotlight onto the government’s actions. Unless Parliament can do its job properly, and save us the trouble.
So at the first opportunity transparency, rectitude, professionalism, even legality, has been thrown to the winds. It is not only the wretched asylum seekers who are left in misery, the entire country is suffering from the wilful negligence, more accurately deliberate breaking of the law by a political party whose internecine warfare is destroying UK’s polity.
By his extraordinary reinstatement of the just resigned / sacked Home Secretary, Sunak has also provided excellent reasoning to reduce the huge backlog of cases awaiting the Court system. If Braverman deserves a “second chance”, surely all those awaiting the slow wheels of justice do too. Give them all a “second chance” and reduce the backlog to zero overnight. But I suspect it is one rule for Tory Ministers representing the right wing of the ungovernable Tory party and everyone else.
Since these people are lawyers, can their professional bodies revoke their membership, for bring the professions into disrepute?
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In a nod to Jacob Rees-Mogg’s resignation letter of “St Crispin’s Day”, DAG reminds us all that it’s Hallowe’en!
What is the sanction for a government minister if they knowingly break the law? Is there criminal sanction? What of those Home Office who act in accordance with illegal instructions?
This evening the Home Sec said she was a lawyer and always “took note” of legal advice in her decisions.
She pointedly did not say she followed the legal advice she was given.
That was my exact thought on hearing her carefully chosen words.
“Once you start making exceptions to the rule of law, those exceptions become wider and more troubling”.
But here it would be very inconvenient and embarrassing to follow the law. The law is therefore not obeyed. Who will make sure the law is obeyed when to do so creates a great deal of embarrassment and political difficulty. So the law is ignored. The King and Parliament are indeed above the law – when it suits.
For what might be involved in following the law. Building lots of accommodation, dishing out work permits and ‘leave to remain’ chits, riding roughshod over planning legislation. Recognising and admitting that there is no practicable way to stop boat people. Admitting that boat people and the like are in some way ‘above the law’. That ‘the law’ cannot deal with reality and cover politician’s blushes. So don’t follow the law.
Or bundling boat people on to airplanes and sending them to Rwanda – with the help of a bit of ‘above the law’.
In such circumstances I can see why officials might be jumpy. But here the Nuremburg analogy does not really hold, there is no possibility of a trial. Everyone is covering everyone’s bottom and salary cheques – while it suits.
Meanwhile the boat people continue to arrive and will continue to arrive. More car parks and tents anyone?
I think that we should not allow this “government” to persuade us that there is no practical way to stop the boat people.
Just as one practical suggestion; at a fraction of the charge made by the people traffickers, we could offer an asylum package, at the cost of a return air flight and two weeks accommodation. The return flight would only be used if the asylum application was refused.
This would require the home office to be efficient at processing requests (a stretch admittedly) but it could also provide a point of control and a more attractive package than being trafficked.
There may be many arguments against this proposal, but it does counter the pretence that there is no alternative.
I feel great relief at your creative, dignified, humane, and helpful suggestion. Stand for Parliament!
Quote – “The Act of Parliament says you should do [x], and so you do [x] – else you are in breach of your duty to do [x].”
Can’t argue with that !
BUT
Which Act of Parliament is in issue here? Surely, we need to know exactly the Act and section.
On the specific legislation at point here, I think the starting point is examination by an immigration officer under paragraph 2 of Schedule 2 of the Immigration Act 1971, as amended, to determine whether a person should be given leave to enter the UK. And detention pending the conclusion of that examination under paragraph 16.
See https://www.legislation.gov.uk/ukpga/1971/77/schedule/2
And that is subject, for example, the limit of 24 hours for unaccompanied children in paragraph 18B, and the requirement in section 60 of the Immigration Act 2016 not to detain pregnant women (with very narrow exceptions).
But no doubt there are other relevant rules and guidelines.
I doubt it would be lawful, for example, for a person to be detained indefinitely, because an immigration officer declines to finish their examination or reach a conclusion on leave to enter.
For example, paragraph 6 of Schedule 2 expects a decision on giving or refusing leave to enter to be notified to a person within 24 hours after the examination ends (with 6 months leave deemed to be given in default). I am no expert, but unless we have interviews continuing for days on end, I’d expect that default provision to come into effect after a reasonable period for a decision to be made.
Is there a source explaining how this all should work in theory and how it actually works practice? Perhaps an immigration practitioner with a blog?
In answer to my own question, so I found this helpful: https://freemovement.org.uk/what-are-short-term-holding-facilities-like-the-manston-refugee-camp/
That article mentions the Short-term Holding Facility Rules 2018 (SI 2018/409) made under section 157 of the Immigration and Asylum Act 1999.
* https://www.legislation.gov.uk/ukpga/1999/33/section/157
A “short-term holding facility” is defined in section 147 of that Act as “a place used … solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed … but which is not pre-departure accommodation”.
* https://www.legislation.gov.uk/ukpga/1999/33/section/147
And then the Rules introduces the concept of a “holding room” where a detained person may be detained for a period of not more than 24 hours unless a longer period is authorised by the Secretary of State.
* https://www.legislation.gov.uk/uksi/2018/409/article/2
The Rules set out various basic requirements as to the suitability of a “facility” (size, lighting, heating, ventilation, food, clothing, hygiene) but most do not apply to a “room”.
* https://www.legislation.gov.uk/uksi/2018/409/article/6
Reading between the lines – anyways a dangerous activity, but this seems a plausible interpretation to me – the basic facilities at Manston may be acceptable if it is used as a “holding room” for 24 hours, but not if it is used as a “facility” for up to 7 days. And the rules do not seem to expect anyone to be detained in a “facility” (not just a “room”) for more than 7 days.
The article linked above mentions some Home Office policy documents which set shorter time limits, with senior levels of official approval required, but perhaps they are more like guidelines than actual rules.
This appears to be yet another example of Boris’s disregard for norms, rules and the law becoming contagious amongst the incompetents that he chose to surround himself with.
The English Nationalists [Nationalists by their very nature are xenophobic racists] are destroying the CONservatives from the inside. Do the moderates in that party not understand that they have a tumour of hatred and incompetence eating them from the inside.
They must be incised before the door is opened for a more capable [but still not worthy of running this once great nation] party replaces them just because they are not as bad.
The time has come for an adult debate about the costs that Brexit has imposed and will continue to impose, and whether those costs can morally be bequeathed to the next generations.
On the rare occasion of a Minister disregarding an obligation we cast about fitfully looking at one mechanism or the other, seeking one authority or the other, that coud do something. The only authority that’s done any good so far is the Supreme Court, but that depends on cases being brought by someone with standing, and HMG could still act to limit susceptibility.
So, how could HMS UK put some kind of mechanism in place able to compel Ministers or the Executive to obey the law (or the Ministerial Code)? Something that a ‘sovereign’ parliament couldn’t legislate to abolish.
I often wish we had something like the German Constitutional Court at Karlsruhe, able to initiate its own investigations, bring cases, and deliver judgments, free of political interference. (And I tremble, as regular readers will understand, to be so adjacent to a request for ‘a written constitution’). But I can see no way in the UK to establish and future-proof such an institution. It only came about in Germany as a consequence of the catastrophe and defeat.
So, ‘Brace’. At least I can find comfort in muttering to myself as we plunge, ‘If only we’d had something like Karlsruhe’.
I know the status and role of Karlsruhe is disputed in Germany: are there readers from Germany who could put the case for or against, or, if in favour, see a route to establishing something similar in the UK?