All Souls Day, 2022
What does it mean for a home secretary to “take legal advice into account”?
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This question is prompted by statements by the home secretary to the House of Commons in respect of the escalating problems at the Manston asylum processing centre.
On Monday she told members of parliament:
“…I have never ignored legal advice.
“As a former Attorney General, I know the importance of taking legal advice into account.
“At every point, I have worked hard to find alternative accommodation to relieve the pressure at Manston.”
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So whatever “taking legal advice into account” means, it does not – for her – mean “ignor[ing]” that advice.
The home secretary herself makes that distinction and juxtaposition.
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The home secretary also said in her prepared statement:
“As Members will be aware, we need to meet our statutory duties around detention, and fulfil legal duties to provide accommodation for those who would otherwise be destitute.
“We also have a duty to the wider public to ensure that anyone who has entered our country illegally undergoes essential security checks and is not, with no fixed abode, immediately free to wander around local communities.”
Note that “also”.
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Those quotations are from her prepared statement, but in response to an opposition question she then also stated:
“I have not ignored or dismissed any legal advice with which I have been provided.
“I cannot go into the details of that legal advice because of the Law Officers’ convention.
“That is part of the decision-making process that all Ministers go through.
“We have to take into account our legal duties not to leave people destitute; I have to take into account the fact that I do not want to prematurely release hundreds of migrants into the Kent community; I have to take into account value for money; I have to take into account fairness for the British taxpayer.”
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Again the distinction is made with ignoring advice, but you will also see that taking into account legal advice is now set against other (competing?) things for her to take into account: “the fact that I do not want to prematurely release hundreds of migrants into the Kent community; I have to take into account value for money; I have to take into account fairness for the British taxpayer.”
These factors are presented as being alongside – and perhaps of at least equal importance to – “tak[ing] into account our legal duties not to leave people destitute”.
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The home secretary in another reply said:
“I confirm that I have not ever ignored legal advice.
“The Law Officers’ convention, which I still take seriously, means that I will not comment on the contents of legal advice that I may have seen.
“What I will say is this: I am not prepared to release migrants prematurely into the local community in Kent to no fixed abode.
“That, to me, is an unacceptable option.”
The impression one gets from this further reply is that her not being “prepared to release migrants prematurely into the local community in Kent to no fixed abode” is not merely a factor to consider alongside any legal advice, but is actually the determining factor.
She seems to see that as the “unacceptable option” to which all other factors presumably, including legal advice, must yield.
If so, this accords with the “also” passage in her prepared statement.
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On Sunday, the day before that commons statement, the well-connected political journalists at the Sunday Times reported:
“Suella Braverman has been accused of failing to act on legal advice that the government was illegally detaining thousands of asylum seekers. The move could cost taxpayers an expensive court action.
“The home secretary received advice at least three weeks ago warning that migrants were being detained for unlawfully long periods at the Manston asylum processing centre in Ramsgate, Kent. According to five sources, Braverman, 42, was also told that the legal breach needed to be resolved urgently by rehousing the asylum seekers in alternative accommodation.
“Two sources said she was also warned by officials that the Home Office had no chance of defending a legal challenge and the matter could also result in a public inquiry if exposed.
“A government source said: “The government is likely to be JR’d [judicially reviewed] and it’s likely that all of them would be granted asylum, so it’s going to achieve the exact opposite of what she wants. These people could also launch a class action against us and cost the taxpayer millions.””
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On Hallowe’en, ITN reported this further information:
NEW: Sources tell me that Suella Braverman actively sought external legal advice on Manston after (they claim) she didn't like what the internal lawyers at Home Office were telling her re need to book hotels. They say she sought independent advice from Sir James Eadie KC 1/
— Anushka Asthana (@AnushkaAsthana) October 31, 2022
They claim that the independent advice corroborated what was said internally – and at that point Grant Shapps (who was by then Home Secretary) acted. But – as Suella Braverman now saying in Commons – was how HO source responded 3/
— Anushka Asthana (@AnushkaAsthana) October 31, 2022
If this ITN report is correct – and it is certainly plausible – this would explain why so many home office “sources” are aware of this issue.
As this blog has mentioned before, it is a significant but not unknown step to go to the Treasury Devil – James Eadie, the government’s senior external legal adviser – for an opinion, especially before any actual litigation.
(You may recall that the Devil was invoked in another matter involving the current home secretary when she was attorney general.)
For the Devil to be invoked and for the advice just to come back as reinforcing the internal home office advice would have been rather the setback for the home secretary.
It would have meant that not only did she have advice before her which was unwanted from internal lawyers, but that the unwelcome advice had been upheld by the most senior external lawyer available to the government.
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If so, what is a home secretary to do?
One thing a home secretary can do is to comply with legal advice,
That is what is expected by the ministerial code and, indeed, by the principle of the rule of law.
Of course, there will be situations – especially in respect of exercises of discretion in individual cases – where legal views may legitimately differ, and so a minister can take a view in respect of litigation risk.
But that latitude is not there in respect of compliance with general statutory duties.
The only option with a statutory duty for a government department is to comply with that duty.
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Now we go back to what the home secretary said, and what she did not say.
The home secretary said that she did not “ignore” legal advice.
And the home secretary said that she took legal advice and legal obligations “into account”.
But the home secretary has not said – expressly – that she complied with the legal advice.
If the home secretary had complied with the legal advice she could simply say “I have complied with the legal advice”.
But she has chosen not to do so, and has used what seems to be evasive wording instead.
The most plausible explanation for this is that she has not complied with the legal advice.
Given the nature of statutory duties, it is not clear how this can be done.
They tend to be legally binary: you either comply or you do not comply.
They are not an item in a basket with other items.
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In the house of commons today, an opposition politician said:
“The Prime Minister promised integrity, professionalism and accountability in Government. His Home Secretary has leaked information, is overseeing chaos in the Home Office and has broken the law. What will she actually have to do to get the sack?”
[An earlier version of this post wrongly attributed this quote to the leader of the opposition. This was not the case, and I have amended this post accordingly. I apologise for this error.]
She would not have said “broken the law” lightly.
Perhaps she was referring to something else (and please let me know in the comments below if you think that was the case) but the impression I formed was that she was referring to the Manston situation.
The leader of the opposition then asked the prime minister:
“Did the Home Secretary receive legal advice that she should move people out—yes or no?”
When this question was not directly answered, he then said:
“I think the answer to the question of whether the Home Secretary received legal advice to move people out of Manston is yes.”
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Presumably the legal advice to which the leader of the opposition was referring is the same legal advice which was provided by the Devil and internal legal advisers.
If so, then it seems that that the home secretary has placed a non-legal factor above compliance with the law.
She has decided that the non-legal factor prevails.
In doing so, the home secretary presumably thinks that this weighing exercise means that she has not “ignored” the legal obligation.
Instead, she has seemingly given less weight to that factor than to another factor.
If this interpretation is correct then it accords what she told the house of commons on Monday and it also accords with what the home office “sources” are saying to reporters.
I cannot think of any other interpretation that accords better with the available information.
(If you can, please do set it out below.)
The problem with this position would be that the relevant legal obligations are not just another item in a basket.
Instead, it is the breaking of those legal obligations that should be the “unacceptable option” to any home secretary, and indeed to any minister or official.
But this home secretary appears to think there is an option that trumps such compliance.
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For the reasons set out above, it seems that the home secretary was advised to comply with the law and she has chosen not to do so, maintaining that “taking account” of the law in such a situation is somehow not to “ignore” the law.
That would be a remarkable position for the home secretary to adopt and, if so, one would expect the courts to take a different view if the matter is actually litigated.
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Thanks for this. My short response is yes,…..but you’ll know from your background in procurement that government often takes a “risk based” view of legal advice. This may occasionally, even, be justifiable. Space does not permit a review of the history of “flexibility” in understanding legal advice in public procurement. Perhaps some of that flexibility has been allowed to infect some politicians general approach to legal advice.
But I wonder if I may take this away and comment on your blog on my little procurement law blog, once I’ve sorted my thoughts.
I listened carefully to Braverman and Starmer, his reference to her breaking the law refers to Manston at least but there may be more to come out. You explain clearly why her own words indicate she has. She demonstrated lack of respect for the rule of law before when she was AG. She now seems to have forgotten or decided to ignore her legal training. She has been very foolish and the results of the judicial review which is now inevitable should make it impossible for her to remain in office.
Perhaps you could clarify the distinction between ignoring legal advice and ignoring a legal obligation
If only I could.
Hopefully that means Braverman or her lawyers cannot either. I find it very difficult to see how she gets out of the mess she has created for herself.
She finds herself between a rock and a hard place.
She can mitigate the rock by charting a path to compliance: nobody expects that the government can turn on a sixpense, and her arguments about the dangers of the alternatives do carry some force.
It would of course help if she could find a less confrontational approach, accept that the task is primarily to help people integrate into British society, and accept the primacy of the law.
Non-lawyer here. I’d assumed the “breaking the law” remark referred to the Home Secretary’s dodgy use of her personal phone and email.
My understanding is that her emails, etc., broke the ministerial code but that, unless she was sharing things that were under the Official Secrets Act or covered by GDPR, they didn’t break the law.
Ah, OK! Thanks for clarifying.
At times like this, when the rule of law resembles a bull festooned with puntillas, this blog performs an important public service. I do not see anyone else commenting with such forensic acuity.
Bring on the judicial review.
If a person is unlawfully detained by agents of the Home Office, and the Home Secretary knows (and indeed has two sets of legal advice confirming) that such detention is unlawful but takes no steps to end the detention, thereby prolonging and repeating that unlawful act day after day, might we need to start to consider misfeasance in public office?
Concentrating people in a crowded, disease-ridden camp should be beyond the pale. Many – probably most – are fleeing from violence and oppression and will be successful in claiming asylum. It is not unlawful to seek asylum in the UK, even if a person enters the UK in an irregular manner. But agents of the state detaining someone without lawful authority certainly is.
Have we reached the level where politicians are deliberately breaking the law to make a populist political point? Brace, you might say, because this is unlikely to end well.
It would seem that “breaking the law to make a populist political point” is not only occurring here but elsewhere too, not least over the NI Protocol but only in a “specific and limited way”. Further evidence of the Conservatives laws that protect them but do not bind and laws for the rest of us that bind but do not protect.
This.
I cannot see the matter going away quietly: while the Leader of the Opposition may not be the most politically acute operator we have ever had, he must surely be one of the best lawyers to reach such a high level of office (and LotO is an official position).
Family obligations may soon become very pressing for Ms Braverman.
“I was the head of Government and I assume all the responsibilities taken by all members of my Government.
That is what being a Leader is: a Leader does not discard his subordinates. Never.”
This was said today by Édouard Philippe in relation to something which happened on his watch during Covid .
Just compare and contrast.
The long list of things that Cruella “…[had] considered”, sounds to me very much like someone lining up their Wednesbury Unreasonable defence ducks, in anticipation of a Judicial Review of her decision.
Do you think there was any significance in the 6pm News images today, of Coaches leaving Manston to take people to a hotel near LHR?
Let’s hope someone has shut the stable door…
The thing is that advice is just advice until a finding by a court. It may be unequivocal that a course of action would be in breach of the law but if you read the advice, think about it, however briefly, and decide to pursue your course of action anyway then you haven’t ignored the advice.
If you take a transactional view of such a probable court ruling rather than a moral one, then an adverse finding would have little personal impact on the home secretary. The government may have to pay some compensation. Some members of the ‘wokerati’ may clutch their pearls that a holder of a great office of state should show such disregard for the rule of law. But Ms Braverman herself may find it beneficial in her political career to have been ‘thwarted’ by the activist lawyers sitting on the High Court bench. She seems to have vociferous support amongst some in her party and the first lord of the treasury seems disinclined to sack her at this early point in his premiership. She may find it hard to see a personal downside to her actions.
This is an amoral view of the law. Not that it tells you what is right and wrong, just that it defines a set of consequences for those who chose to transgress.
Indeed… And Cruella is not the only one with this dystopian view of the Nolan principles…
I am sure you are correct. Braverman probably wants legal challenge, as it will reinforce her “on the side of ordinary people” positioning. And I am sure governments have always taken decisions that they have been advised not to take by legal advisors.
However, this set of chancers seem as a matter of principle to ignore legal advice and indeed the law, whether partying during lockdown, fibbing to the late queen, breaking the NI protocol or any number of other breaches.
Depressing.
Round and round we go, did she follow the law or didn’t she? As if deciding some nuance of legal verbage will make any difference – those people at Manston and all the other places will not go away just because the Treasury Devil says this or that.
We are supposed to have ‘joined up government’ and we live at a time when we have more ability to do things than we ever had in the past. And yet, and yet, we seem to be going nowhere, ‘difficult’ questions go unanswered.
But the questions are not too difficult, merely that the answers are inconvenient. Inconvenient because those answers might require Ms Braverman to require action from her political colleagues – action that would cause those colleagues some trouble and expense. We don’t have joined up government, Ms Braverman’s colleagues are very anxious not to help her out but to leave the problem with the Home Office. They are clutching their pearls hoping against hope they can all go back to doing – nothing.
Meanwhile the boat people continue to arrive and will continue to arrive. The boiler pressure is rising, lawyers will debate angels and pinheads and those immigrants will escape somehow. It’s the Law – of nature.
Non-lawyer, but for brevity, I refer to the “Shopping List”:
“We have to take into account our legal duties not to leave people destitute; I have to take into account the fact that I do not want to prematurely release hundreds of migrants into the Kent community; I have to take into account value for money; I have to take into account fairness for the British taxpayer.”
Aren’t several of the items in the shopping list legal duties (albeit some like VfM more abstract than others)? And therefore some merit in the principle of having to weigh up?
Perhaps the likely consequences of a judicial review are quite acceptable to her. Perhaps she and others think the “woke lawyers award taxpayers’ money to migrants” headlines would be well worth the financial cost, and only serve to strengthen their cause.
“Perhaps she and others think the “woke lawyers award taxpayers’ money to migrants” headlines would be well worth the financial cost, and only serve to strengthen their cause.”
This angle – which I’m sure is correct – frustrates me immensely.
YouGov publishes regular polls about what really matters to the country and its citizens: matters of immigration routinely come out as being important to around 25% (give or take) – so to a honking majority of us, it’s just not a significant issue.
That the client media – and people like Braverman herself – can make such political mileage from it, offends me.
(I might have “no right not to be offended”, but I still have a right to be offended…)
“I have complied with the legal advice”
This is going to seem pedantic, but what is the meaning of complying with advice? The advice is that there is a statutory duty, but the advice is not something that requires compliance. Rather, the statutory duty needs compliance, assuming the advice is sound.
I do find the reference to “need to meet our statutory duties around detention” by both Braverman and Jenrick instructive. It is plainly a formulation used advisedly. It has the supercificial benefit of presenting a Government in dilemma weighing up “competing” statutory duties.
What is interesting is that detention is, of course, a statutory power not a duty. The Home Secretary is not obliged to detain anyone but is empowered, by the Immigration Act 1971, to detain anyone subject to immigration control (i.e. anyone who has entered the country and about whom an immigration officer may have to make a determination regarding their citizenship or right to remain).
That power is very broad, but not unfetterred. The fetters are largely statutory, either purely domestic or incorporated supranational law. By way of an example of the latter, by virtue of the Human Rights Act and Article 5 ECHR, detention must be proportionate to its objective: i.e. if it is for the purpose of merely initially assessing an aslyum application and whether to grant immigration bail, proportionate to the time it should take to do that and for no longer than that). A purely domestic fetter is that children (and their family group) can only be detained for 72 hours, likewise pregnant women.
It is more complicated than this because there is a vast statutory network of primary and delegated legislation, and rules and policies that have developed, over time, institutionalising the exercise of the power of detention, and in particular, the place and conditions of detention.
It would appear that Manston, cutting through the chaff, is entitled to hold persons for 24 hours without a more senior decision maker’s intervention, and, in any event, no more than 7 days. Thereafter, detention at Manston is outwith the statutory framework.
As such detention after 7 days at Manston (and perhaps earlier) would, prima facie, constitute unlawful detention. That would not be a question of “competing” duties but would simply be an unlawful purported exercise of a statutory power. In that context one can easily imagine straightforward legal advice along the lines that you, Home Secretary, are doing something for which you do not have the statutory power. The only way to not “ignore” that advice is to stop doing it.
Of course, if to stop doing it could cause you to breach a statutory duty (e.g. releasing persons who are, under immigration rules, not entitled to undertake paid employment, destitute and homeless on to the streets at Victoria Bus Station) the how you stop doing the unlawful thing (detention at Marston) becomes more complicated. For instance, you may have to secure emergency alternative accomodation at a high cost and there may be a short period where you continue unlawfully detaining people while you arrange appropriate transfers.
However, as should be clear to all, it being difficult and expensive to stop doing an unlawful thing is not a good reason to not stop doing it, and no competent legal advice to the Goverment would say otherwise.
Thank you James for the reminder that the Manston affair involves the (over enthusistic) exercise of a statutory power.
Surely the government could merely issue a new SI to accord themselves greater powers? They were supposed to have a massive majority last time I asked!
I’m reminded of Marx’s Law of Mutability.*
Braverman enters the Pick ‘N Mix store of Legal Opinion, only to leave empty-handed, having tried to find “the one” that fits her frame of mind. She can then tell Parliament that she “took legal opinion into account (i.e. tried them all on) without disclosing (“I cannot go into the details of that legal advice because of the Law Officers’ convention”) that there was none there that suited her case. She goes on to dob all her fellow ministers in her deception by affirming that “That is part of the decision-making process that all Ministers go through.” [I cannot believe that every Government minister will have been content to be wrapped up into her web of obfuscation. I do not believe they are all as, er, dishonest.]
Just when you think they can’t get any lower, they prove you wrong.
[*These Are My Principles. If You Don’t Like Them I Have Others]
It certainly seems highly likely that there was a breach of statutory duty that would, if litigated, be successfully tested in the courts. I wonder how such a test might actually be performed? Who (or what, I suppose) is actually in a position to instigate such a litigatory test? And assuming any such entity exists, are they at all likely to do so?
All very interesting, even to the non-lawyer, but it’s the sheer inhumanity of her policies that deserves more severe condemnation than for not accepting legal advice. Even we liberals should accept briefly for a moment the trouble that this government has got itself into on refugees and asylum seekers, in an age when for lots of reasons numbers are increasing and likely to continue to increase. Then we should move on to demand that the government provides safe routes to enable people to seek our help, by working in collaboration with European and other governments facing similar, and often more severe, problems.
I am most grateful for such clear post and also knowledgeable comments. As non lawyer I am primarily concerned that actions we see are not even close to solving the problem of dealing adequately with asylum seekers.
In all the speech three points stand out for me:
– deliberate use of gratuitously inflatable language by Home Secretary from dispatch box: her reference to primacy of not ‘releasing them to Kent countryside’ evokes images of law breaking groups about to pillage our Home Counties
– calling asylum seekers throughout illegal immigrants (occasionally just immigrants as in reference to ‘Scrooge’)
– total absence of any reference to decisions by home office to largely outsource handling of asylum seekers upon arrival to UK to contractors on fixed price contract with defined volumes: value for money is false economy in you do not plan for unexpected events!
It is this last point which is most troubling in long run as it is coupled with incredibly slow processing of asylum seeker applications.
This sorry saga is only getting worse. It is stain that will affect us all. The pictures from Manston fences are bad enough. People showing what happens when they are dumped in hotels are probably going to be even more damaging.
Does this mean we don’t have to obey the law any more; we just have to “take it into account”?
I imagined a man in court for burgling Suella Braverman’s house. He says in his defence that he hadn’t ignored the law, he’d taken it into account.
However, on balance he decided that being able to feed his family was more important and that, as he was following her example, he should be let off.
I wonder whether the Home Secretary would agree.
Who was it who adapted the famous Mario Puzo quotation to “I’ll make him an offer he can’t understand.”? Questions to the Home Secretary on the Floor of the House are never an occasion to elicit information known thus far only to her. They are always seen as an opportunity for her honourable friends to heap praise on her and for her honourable enemies to catapult buckets of feathers at the citadel atop whose ramparts she struts and blows raspberries.
But she is not allowed to remain silent. A truly astute Opposition front-bencher would ask a question for which it is impossible to have a prepared or successfully improvised answer — a “daft laddie question”, which sticks the stiletto between the ribs before the addressee even feels a tickle.
Charles Kennedy did it once to Tony Blair, and the spectacle of that smooth operator being totally rattled was a delight to behold. Where are such parliamentary giants to be found in these troublous times?
Is anybody helping these people to claim compensation for the breach of their right have things decided “Within a reasonable time”, as set out in Article Six of the Human Rights Act?
It should be a straightforward application to the small claims court or moneyclaim online, it would help them out and be a slap in the face for the formerly ex-Home Secretary.