David Allen Green

The coming constitutional excitements in the United States

The last post over at my Substack was fairly UK-centric – indeed Anglocentric – in its approach to the issue of constitutional crises.

That post averred that we do not often have constitutional crises in the United Kingdom though we (too) frequently have constitutional dramas and excitements. But it also warned that we are never far from a constitutional crisis, and that only self-restraint and deference to checks and balances have stopped constitutional tensions converting into contradictions.

Glancing at the United States, however, the situation appears to be far more serious. Over the Atlantic there seems to be a fundamental threat to constitutionalism, the effects of which may become very obvious in the coming year.

A few years ago, a complacent liberal might have assured you that in a democracy the perils of illiberalism could be dealt with in two simple ways.

First: politically one could defeat illiberals by winning struggles within political parties and by winning elections between political parties.

Like the proverbial poor, illiberals are always with us, but they could be kept away from power by gatekeepers and electoral prowess.

But what happens when the gatekeepers fall away and then the legitimacy of elections is itself contested? When the electoral wells are poisoned?

This is the immense problem created by the Trumpite lie about the “stolen election”. What good is defeating illiberals in a general elections – and being seen to defeat illiberals by sizeable votes – if the legitimacy of those elections is denied?

The old certainty that the best way to defeat illiberals is by defeating them at the ballot box is no longer sound if the ballot box is not respected.

Second: even if the illiberals gained executive or legislative power, the individual would still have the protections of their civil liberties as guaranteed by an independent judiciary. In this way the minority would be protected against any apparent majoritarianism.

But what if the very notions of civil liberties and of an independent judiciary are also trashed? What if the systems of rights and of their enforcement are, like elections, robbed of their legitimacy?

Here the illiberals are fighting the second front of their overall campaign. Just as electoral verdicts against them are dismissed, so are judicial verdicts. Their objective is to have no constraints on what they can when they have power, to have nobody who can say “no”.

Of course, the illiberals have not so far won either of these battles. Trump and his supporters are still out of presidential power, whatever they say about elections results. Illiberals have also not discredited the systems of rights and their enforcement (and indeed they have mixed feelings, given they often wish to rely on their “right to bear arms” – as they interpret it).

But these parameters of constitutional action are being continuously contested, even if they are not yet destructed.

If the results of elections are not accepted, and if the rulings of the courts are respected, then the conventional political and judicial checks on illiberalism may be insufficient.

And if so, what happens?

Nobody knows – and even best guesses may not be accurate. Like Withnail and Marwood, we could be drifting into the arena of the unwell, making enemies of our future.

This post was prompted by the discussions about whether Trump should be disallowed on various ballots by reason of his participation as an “insurrectionist”.

Such an huge intervention would have implications.

The normal inclination would be to oppose such a restriction on political choice: that the way to defeat Trump is at the ballot box and, if then appropriate, in the courts that apply electoral law.

But, comes the response, what if Trump and his supporters flatly reject the legitimacy of the ballot box and the courts applying election law? What if that standard liberal constitutionalist stance is no longer valid?

It is a difficult if not impossible question to answer, at least by the application of usual liberal principles.

And so the new year is going to be interesting.

2024 has the potential to be a very exciting year constitutionally.

And as we know, constitutional law should not be exciting, it should be dull.

Brace.

Best wishes for the new year, and thank you for your support and following.

What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers

15th December 2023

Those criticising human rights law and lawyers often shy away from spelling out the substance of a particular right

You may or may not remember Abu Qatada and how he once featured in British politics.

About ten or so years ago, he was the Rwanda policy of his time.

The British government under both Labour and then the coalition of Conservatives and Liberal Democrats wanted to deport him to Jordan.

But the pesky human rights lawyers and pesky human rights judges and pesky human rights courts would not let this deportation happen.

And how the politicians and the media fumed.

The headlines seem somewhat familiar:

But what was missing from almost all the news coverage and political discussion was the actual reason why human rights law was preventing the deportation of Abu Qatada.

And that reason featured an ugly word, a word which politicians and the media of the United Kingdom like to avoid.

That word was torture.

In particular, in this case, whether it was open for a person to face legal proceedings where the evidence had been obtained by torture.

This meant that if you wanted to deport Abu Qatada by withdrawing from the European Convention on Human Rights (ECHR) what you were really saying was that it was fine for a person to face criminal charges based on evidence gained by torture.

Of course, that is not what was being said: what was being blamed were the pesky human rights lawyers and pesky human rights judges and pesky human rights courts.

But all the pesky human rights lawyers and pesky human rights judges and pesky human rights courts in the world can do little or nothing unless there is an actual right being infringed.

In the end the United Kingdom resolved the problem not by breaking human rights law or withdrawing from the ECHR, but by negotiating a treaty with Jordan where it was agreed that torture-gained evidence would not be used:

Abu Qatada was deported not because then Home Secretary Theresa May stood up to the pesky human rights law, but because she and the United Kingdom government complied with human rights law.

And what then happened?

Without being able to rely on torture-gained evidence, Abu Qatada was cleared in Jordan of the criminal charges he faced:

Ten years or so later, we are repeating the same sort of story.

The pesky human rights lawyers and pesky human rights judges and pesky human rights courts are stopping the government implementing the Rwanda scheme.

But, as with Abu Qatada, most (if not all) of those upset by this non-implementation leave unsaid the actual substantial right at issue.

The principle of non-refoulement means that an asylum-seeker should not be returned (or otherwise removed) to a country where their human rights will be violated.

As the Supreme Court set out in the recent appeal judgment:

Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

Just as those in favour of Abu Qatada’s deportation did not say (aloud) that they wanted a person to face charges based on torture-gained evidence.

But in both cases that is the necessary – inescapable – implication of their position.

Sometimes, of course, when it suits, those opposed to human rights law will happily spell out the substance of their grievance: take prisoner votes, for example.

In that example, both the substance of the right and pesky human rights lawyers and judges and pesky human rights courts could be attacked, and were.

But even with prisoner votes, the underlying problem was resolved by political negotiation and case law rather than defiance:

Again: reform and compliance, rather than confrontation.

Unlike the prisoner votes issue, however, those in favour of the Rwanda scheme do not want to spell out the underlying human rights issue.

And that omission is – or should be – a tell.

It tells us that those wanting to rid us of human rights law do not want to address why there is a human rights issue at stake.

They want to tell you the tale of pesky human rights lawyers and judges and of pesky human rights courts as being a political problem in and of itself.

No doubt many human rights lawyers and judges are irksome, but it is only possible for them to be obstructive when there is a fundamental right at stake in a concrete case.

And, as with Abu Qatada and prisoner votes, such obstructions can be resolved by, well, politics: reform, negotiation, compliance.

You know: the sort of things which politicians are supposed to do, when they are not blaming human rights law instead.

Using ugly situations as the means to attack human rights law indicates that there is something else going on.

It shows that what is really being clamoured for is for brute executive might to be allowed, despite the violations of rights in individual cases.

But that bit is usually left unsaid.

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A role-reversal? – a footnote to yesterday’s post

1st December 2023

Discussing yesterday’s post with a long-suffering friend, the following thought came to mind.

In the Rwanda judgment, the Supreme Court goes into detail as to the work needed on the ground to make the removals policy robust and practical; and, in turn, the government is seeking to use parliament to simply declare a policy legal instead of illegal.

This seems quite the role-reversal: the court setting out what needs to be done as a matter of policy, instead of the executive and the legislature, and the executive threatening to use the legislature to decide whether something is lawful.

Strange, if you think about it.

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The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in

30th November 2023

This post is about three elements of the judgment of the Supreme Court on the Rwanda policy – and how the Supreme Court decision means that the Rwanda scheme cannot be saved by legislation and treaties alone.

These three parts indicate the difficulties for the government if they seek to use legislation so as to circumvent the judgment.

And two of these parts are about things which the Supreme Court did not decide.

The first of these is about, of course, the European Convention on Human Rights (ECHR).

Here it should be noted that the court had granted permission for the Convention to be raised as a ground of cross-appeal:

(The government appealed – as they lost at the Court of Appeal – but some of the asylum seekers cross-appealed on points on which they had lost.)

The Supreme Court dutifully set out the Convention point in two paragraphs of the judgment:

You will see, however, that even in these paragraphs the court is careful to set out the Convention position alongside other applicable laws.

The court then makes this point about other applicable laws explicit:

In essence, the court is stating that the ECHR point does not stand alone.

And then in paragraph 106, towards the end of the judgment, the court says (with emphasis added):

This means that even if the ECHR did not apply directly, and even if the Human Rights Act did not exist, then the court would have decided the case the same way anyway, because the key legal principle is in other other applicable law.

That key legal principle is non-refoulement – that is the legal rule that requires that refugees are not returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. The court found on the evidence before it that there was such a risk if the asylum-seekers were removed to Rwanda.

It thereby follows that if the government were to bring forward legislation to limit the effect of the Convention in Rwanda removal cases it would not make any difference. The courts would just rely on other laws for the same point.

And this brings us to the second part, which is rather fascinating.

This is the thought-provoking – indeed, provocative – paragraph 25:

Now this is quite the passage.

So-called “customary international law” is, almost by defintion, outside the power of any one nation state to change. It will apply anyway. As the court says:

“the significance of non-refoulment being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect.”

A nation state may break that law, but they cannot unilaterally change it.

In other words there is no legislation whatsoever the government can bring forward that will mean that this rule would not apply to the United Kingdom.

Deftly, the court ends this point with “as we have not been addressed on this matter, we do not rely on it in our reasoning”.

This suggests that if the Rwanda policy is re-litigated to the Supreme Court, even if the government somehow excludes all the applicable legal instruments (and not just the ECHR and Human Rights Act) then the court may well still hold that the policy is unlawful, on the basis of customary international law.

That is quite the marker.

The third part is about what the court did decide.

Here paragraph 105 is worth a very close look:

Here the court is stating that mere formal changes – such as placing the Rwanda policy on the basis of a treaty, as opposed to a flimsy MoU with no legal effect – will not, by themselves, render the policy lawful.

A treaty – which would provide for enforceable rights for individuals – would be necessary, but it would not be sufficient.

The real change required is that there be compelling evidence that, in practice, the Rwanda scheme will “produce accurate and fair decisions”.

And this is also outside of the scope of what the government can push through parliament: for no mere Act of Parliament can by itself change the situation on the ground in Rwanda.

Either the Rwanda scheme can be shown to produce the results required by the applicable laws – and, if need be, customary international law – or it cannot.

And if it cannot, it would seem that the Supreme Court will again hold the policy to be unlawful, whatever legislation is passed at Westminster.

This case now comes down to evidence, not law.

Without relying on the ECHR the Supreme Court has placed the government in a rather difficult situation if the Rwanda scheme is to continue.

It would seem that only actual improvements in practical policy can now save the scheme – not clever-clever “notwithstanding” legislation.

And for a Supreme Court that had developed a reputation for being deferent to the executive and legislature on “policy” matters, this is a remarkable position.

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On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate. It would not have been relied upon had the government been actually serious about this policy.

I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday

10th November 2023

Even if the United Kingdom government wins on the lawfulness of the policy, it has already lost in respect of procedure

Those interested in day-to-day politics in the United Kingdom are now looking to next Wednesday for the Supreme Court decision to be handed down on the lawfulness of the Rwanda policy.

The conventional wisdom is that if the current Home Secretary is still in post on Wednesday, a Supreme Court defeat for the government may be the basis for the Home Secretary to resign and campaign for the United Kingdom’s departure from the European Convention on Human Rights, or something.

Nobody outside the court will know the result in advance and so the hand-down will be a moment of drama and excitement.

On balance, any legal challenge to “policy” – that is an approach to general political problems – is likely to fail.

For an entire policy to be quashed it would require that each and every possible application of the policy in any concrete situation must be unlawful – that there is nothing that can be done to save a decision in a particular case.

Courts are reluctant to do this – not least because policy is usually the province of politicians, and judges will not want to trespass.

And the current Supreme Court under Lord Reed often seems cautious in dealing with “policy” challenges.

There perhaps are reasons why this particular policy may be unlawful in the round – and if it was not arguable that the policy was itself unlawful the Supreme Court would not have heard the case – but it would not be shocking if the Supreme Court sides with the government and holds that some applications of the policy may be lawful, subject to certain conditions.

And here is the nub of the situation, which many in politics and the media seem to be overlooking: the courts have already held that there are strict and onerous conditions in particular cases.

These conditions are so strict and so onerous, it may well be that few if any asylum seekers will be relocated to Rwanda, even if the Supreme Court rules that the general policy is legal.

Followers of this blog may recall posts about this at the time of the initial High Court decision and the Court of Appeal decision:

As this blog has before averred, the government can both win and lose a legal case at the same time.

And even if the government wins on whether the policy is lawful, the procedural protections already insisted upon by the courts in the application of the Rwanda policy will present difficulties for a Home Secretary after next Wednesday.

Whoever that is.

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The extraordinary newspaper column of the Home Secretary – and its implications

9th November 2023

The extraordinary newspaper column of the Home Secretary – the Home Secretary! – should be either consequential (in that the Home Secretary loses their job) or significant (in that it signifies something about the government that does not sack this Home Secretary).

But in neither situation, should it be treated as normal, and it should not just be shrugged off as an ambitious politician seeking advancement. It should matter, one way or the other.

This blog does not offer commentary on Israel/Palestine/Gaza – as this blog does not have any special knowledge or understanding about the Middle East.

But this blog does follow the constitutional (and operational) relationship between central government and the Metropolitan Police, and it also follows free expression issues and Irish matters.

And in respect of each of those things, the Home Secretary’s column is (at best) unfortunate and (at worst) horrific.

It is a rare Home Secretary who makes the Metropolitan Police – the Metropolitan Police! – look liberal.

If the Home Secretary keeps their job after this, their intervention should not be forgotten. It was a crass and illiberal assault on the constitutional (and operational) independence of the police, against freedom of expression, and based in part on a mangled and limited understanding of Irish history.

This intervention should not have any place in our polity, even in these unusual political times.

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Drafts of history – how the Covid Inquiry, like the Leveson Inquiry, is securing evidence for historians that would otherwise be lost

All Saints’ Day, 2023

The Leveson Inquiry ended badly: the recommendations of the report were botched and then ignored.

But the Inquiry was not without value: the Inquiry placed into the public domain substantial evidence about the nature of the news media that otherwise would have been lost. As such the Inquiry was a boon for the public understanding of the media, even if it was a failure as a means of bringing about regulatory change.

We cannot know yet whether any recommendations of the current Covid Inquiry will be similarly of little or no import. But, as with the Leveson Inquiry before it, it is a boon of the public understanding of those with power – though this time it is revealing the doings and goings-on of those with political power instead of media power.

This is because the Covid Inquiry has “teeth” with its powers to obtain evidence. And without such teeth there can never be real accountability. The sound of accountability are the complaints and greivances of those being forced to disclose evidence against their will.

Of course, the Covid Inquiry has not got all the evidence it wants – and some of the excuses for non-disclosure seem at best implausible. But the Inquiry has got far more than any attempt by parliament or the press to hold ministers and officials accountable.

And there is no reason to believe that the actions and attitudes revealed by the disclosed evidence before the Covid Inquiry is exceptional: one can only presume that, say, Brexit was dealt with in the same way. That evidence, however, is forever hidden from us.

But the Covid Inquiry is giving us a snapshot of the nature of political power in Whitehall in the early part of this decade – and one which will assist historians for generations.

Part of the value of statutory inquiries is not in the results but in the process and what is revealed in the process – and, perhaps paradoxically, that is why many public inquiries are also indicative of the failure of our political institutions and media to otherwise hold the state properly to account.

Proportionality is an incomplete legal concept

25th October 2023

The legal(isitic) concept of proportionality does not exist in a vacuum, for it is a term for the relationship between means and objectives

There is an old line shared by English lawyers that, for the High Court, domestic law is a matter of law, foreign law is a matter of fact (on which the court may take expert evidence), and international law is a matter of fiction.

And for those who take the (not entirely unreasonable) view that law needs to be capable of enforcement so as to be termed “law”, the nature of international law is problematic.

(Here we mean what is called “public international law” – the law which in general applies to state and international actors, rather than “private international law” which is about cross-border transactions and other private law relationships.)

One can say [A] or [B] is in breach of international law, but unless there is a court or tribunal of competent jurisdiction available and capable of determining the question, statements about international law can just seem like many assertions and expressions of opinion.

But, even if there is no likelihood of any case ever reaching a court, states often say they have regard to international law in what they do.

The current news from Israel and Gaza raises the question of compliance with international law.

Many have strong views on what is happening in Israel and Gaza.

The best explainer I have come across (via David Anderson on X/Twitter) on the application of international law to what is happening in Israel and Gaza is this one.

And you will see that the key concept here is one of that most tricky of all legal notions, proportionality.

The only point this general legal blog can add is that the legal(istic) concept of proportionality does not exist in a vacuum – a thing is not, at law, proportionate or disproportionate in and of itself, for the concept describes a relationship between things.

The concept of proportionality makes legal sense (if it makes any legal sense at all) when it is applied to the relationship between means and an objective.

The legal concept of proportionality will then provide a way of assessing whether particular means go further than necessary in meeting particular objectives.

Of course, this tells you nothing about the merits of a proposed action and of the legitimacy of an objective.

And so it is a legal concept, in public international law and other areas of law, which can raise questions rather than answer them.

But if one has a view on whether what any state actor is doing is proportionate or disproportionate under international law then one also has to be as precise as possible as to the actual means and to the specific objectives to which the concept is being applied.

And some will say that some means may never be proportionate to any legitimate objective.

Only on-point (and sensible and constructive) comments will be published below – there are other places on the internet for other comments.