Author: David Allen Green

Compliance not confrontation: a possibly significant rhetorical shift in the Foreign Secretary’s statement today on the Northern Irish Protocol

17th May 2022

As any good regulatory lawyer will tell you, ‘compliance’ is better than contravention or challenge.

The question is what can constitute compliance.

From time to time a regulatory lawyer will get a new or inexperienced regulated client who want to challenge or contravene a regulatory rule or policy.

‘Let’s go to court’,’ the novice will say, or ‘let’s tell them that we will see them in court’.

The regulatory lawyer will shake their wise head and say: ‘well, if you do this instead, then you will be complying, and then all the bother will go away’.

*

Compliance is usually a better overall legal strategy than confrontation.

And with that view in mind, let us now look at the statement by the Foreign Secretary today to the House of Commons about the Northern Irish Protocol.

Instead of the statement once (notoriously) made by a cabinet minister that the United Kingdom would only break international law “in a very specific and limited way”, the Foreign Secretary said that the government would comply with international law in its new legislation:

“That is why I am announcing our intention to introduce legislation in the coming weeks to make changes to the Protocol.

“Our preference remains a negotiated solution with the EU.

“In parallel with the legislation being introduced, we remain open to further talks if we can achieve the same outcome through negotiated settlement.  […]

“The Government is clear that proceeding with the Bill is consistent with our obligations in international law – and in support of our prior obligations in the Belfast Good Friday Agreement.”

In other words, the government is to ‘comply’ with international law – though no doubt in a very specific and limited way.

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So much for rhetoric – on information currently available, it seems the government is threatening what it has threatened before.

The significant difference is that the government is now to threaten this while maintaining it is complying with international law rather than candidly admitting that it is seeking to break it.

It seems that the basis for this intellectual exercise in gymnastics is that the Good Friday Agreement takes priority over the protocol.

That this is the tactic is supported by the references to the Good Friday Agreement at the beginning of the statement and from statements from government supporters:

*

As one Northern Irish writer put the notion of such priority in a fantasy context, there can sometimes be “deeper magic”.

What the government appears to be developing is a contention that any unilateral amendment of the Norther Irish Protocol cannot really be a breach of international law if that amendment is by reason of the Good Friday Agreement.

Of course: this is all sophistry and illusion.

The policy substance has not changed, and the proposed breach has not changed, all that has changed is that the proposal will not now be described as breaking international law.

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Yet such a rhetorical shift is possibly significant.

For it may signify that although the United Kingdom government has no fresh ideas about how to resolve the issue with the Northern Ireland Protocol, ministers may now realise that the rhetoric of challenges and outlawry is not necessarily helpful.

And, if this is the case, this could become a useful habit – for the government may find other things that can be brought under the label of ‘compliance’ that may allow it to shift its position in substance.

Smudgery and fudgery, perhaps.

And somewhere in Whitehall, a foreign office lawyer nods their head wisely.

It is all about what ‘compliance’ means, you see.

**

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Four truths about the Northern Irish Protocol

16th May 2022

Here are, to begin with, a couple of truths about the Northern Irish Protocol – both of which will be familiar to those who are hostile to or critical of Brexit.

First, the protocol was negotiated, signed and implemented by the Boris Johnson government – who even had changed government policy from Theresa May’s previous backstop.

Indeed, Johnson even went to the electorate for a mandate for this ‘oven-ready’ deal.

He and his government owns the protocol.

Second, triggering Article 16 will not do what the more excited media and political supporters of the government say (and perhaps think) it will do.

As this blog has previously set out, triggering the provision only means there will be talks and possible remedial measures within a narrow compass.

All because a thing can be triggered, it doesn’t make it weapon.

But.

There are other truths which those hostile to or critical of Brexit may not so easily want to admit.

For a third truth is that there is an issue not of black-letter law, but of – for want of a better word – application of the protocol.

This point is deftly summarised in a recent thread from Hilary Benn, who is hardly a fire-breathing Brexiter:

Of course, the European Union – including Ireland – are right to be concerned about maintaining the integrity of the single market.

Yet, it is less clear that that goods going to Northern Ireland from across the Irish Sea put the single market at risk – or at least at sufficient risk so as to justify the current regime of checks.

And ‘proportionality’ and ‘subsidiarity’ are, after all, concepts drawn from European Union law and policy.

In other words – without breaking (or amending) the Northern Irish protocol, a great deal of the commercial – and political friction – could be allayed – by a less strict (or more realistic) approach to concepts such as ‘at risk’.

Just because there are rules, they do not need a maximalist interpretation.

And fourth, and as this blog has averred before, Northern Irish politics do require there to be consent from both the unionist and nationalist communities.

Overall majorities are not enough.

Of course, the Democratic Unionist Party has only itself to blame for supporting Brexit – and the Johnson government – what else did they think would happen?

(And why the Democratic Unionist Party supported Brexit is a genuine mystery of the Brexit story.)

But the the practical political problem is that the protocol appears not to be supported by any elected unionist politicians.

You may think they should support the protocol – and you may be dismissive of them for not doing so – but the need for consent from both communities cannot be waved away.

So: there is a problem – of the Prime Minister’s own making and for which triggering Article 16 will not – by itself – solve.

But it is also a problem that needs to be considered flexibly and sensitively.

As this blog has said many times, not all problems have solutions.

Yet there is sometimes no alternative to seeing if there is a way forward – and such attempts should be given a chance.

It is just unlikely that a solution will come from the current government with its current bombastic silliness and confrontational gesturing.

The attitude of this government is a problem that can be solved – and as soon as possible.

 

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The Brexit Multiverse of Madness

13th May 2022

The multiverse is a concept well known to superhero comics fans.

A multiverse, in essence, allows the same characters and places to exist in a number of alternative realities.

For the storyteller and the reader this allows different stories to be told about say, Batman and Gotham City, unconstrained by the hobgoblins of continuity or consistency.

For the publishers and film-makers it allows deployment and exploitation of valuable intellectual property in a number of different contexts, unconstrained by those same two hobgoblins.

And there is the added advantage that, every so often, you can have crossover and ‘crisis’ events where universes collide.

Everyone is a winner.

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Brexit is a multiverse.

In one continuity, Brexit-I, you have the official position – as illustrated by treaties signed and legislation passed, and by economic data.

This is the version of the Brexit story that a historian working only from official and business records would tell.

In another continuity, Brexit-II, you have the excited briefings and front-page newspaper splashes that spill over from the soap opera of Westminster politics.

The weekly event of the United Kingdom government about to do something rather dramatic and plainly stupid, in return for claps and cheers from the easily impressed.

Often this second continuity crosses over to the first continuity and there is a crisis event.

And there is a third continuity, Brexit-III, which are the same events as set out above but as seen with bemusement and/or horror from Dublin, Washington, Brussels and elsewhere.

This is the world of Brexit-III – the story of outside entities who are affected by but cannot directly intervene in the worlds of Brexit-I and Brexit-II.

Those in Brexit-III are conscious of the propensity of Brexit-II in particular to create crisis events.

Yet Brexit-III is stuck in its own external continuity, with its own norms and values unknown in Brexit-II.

*

Every so often in comics you will get a bright and ambitious executive who directs that the separate universes in the multiverse be fused, because it is all getting too complicated for new readers.

And we then get stories where characters in different universes are confronted with their counterparts, knowing only one version of themselves will survive.

This can be all great fun – but such grand fusions rarely last long, and the universes again multiply because that is the way of superhero comics, as it suits the respective interests of readers, storytellers, and businesses.

Some may think it is a good thing for a multiverse to be fused, but nobody really likes it for long.

And the same can be said for the Brexit multiverse of madness.

Brexit-I is best kept as far as possible from Brexit-II.

Those invested in Brexit-II will never understand Brexit-III, and vice versa.

Trying to unify Brexit so there is a single continuity and narrative that can be shared by all is pointless and futile.

There will not be a single Brexit story, at least for a political generation.

And so we will have, at least for a political generation, crisis events where these Brexit universes collide.

Brace, brace.

**

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The outlaw ministry

12th May 2022

From time to time on social media you will get people asking about the difference between something being ‘unlawful’ and being ‘illegal’.

And whenever this happens you will invariably get some wacky funster replying that the difference is that one means someone is acting outside the law and the other is a sick bird.

Ho ho, every time.

But.

The real problem with this government is not that it acts unlawfully or illegally.

The problem is that it acts as if it is an outlaw – that for the government, law does not apply in the first place.

It is not so much that the government cares about breaking any law, or about whether it has any legal basis for what it does.

Instead, the government does not see law as even applying to it.

To use a lovely Scottish word – the government acts as if it is ‘outwith’ the law.

The law applies to little people, and not this government.

‘Law and Order’ is a campaigning slogan, but not a principle of government.

As this blog has previously averred, this government engages in three types of lawlessness.

First, it often conducts itself without any lawful basis.

Second, it seeks to introduce legislation that will enable it to freely break the law.

Third, it permits law-breaking at the highest level.

It is difficult to imagine a government with less respect for law, and for the rule of law.

This is not so much a government of law breakers, but a government of outlaws.

The law is an inconvenience which can be disregarded as and when it is inconvenient.

Such an approach has its hedonistic attractions, but it cannot end well.

Brace, brace.

 

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What Theresa May got right (but also very wrong) about Brexit – a look at her striking intervention in the Queen’s Speech debate

11th May 2022

Theresa May is a far better as a former Prime Minister than she ever was as a Prime Minister.

Other living former Prime Ministers have all stepped away from the House of Commons – and have also avoided appointment to the Lords.

Hers alone is the voice of a former Prime Minister in parliament at a time of this generally dire premiership.

Her premiership was not a good one – and from her early blundering over Brexit ‘red lines’ flowed almost all of the Brexit problems the United Kingdom has since had to deal with.

(And, of course, she was a worse Home Secretary, where she instigated the vile ‘hostile environment’.)

But.

May got one thing right.

And that was – given the respective positions of the United Kingdom and the European Union – there had to be either a ‘backstop’ or a trade border down the Irish Sea.

She chose the ‘backstop’ – which, in general effect, meant that if the United Kingdom and Ireland/European Union did not agree a trade agreement, certain measures would have to be implemented in Northern Ireland in respect of cross-border trade.

That proposal failed to pass the House of Commons – indeed, those versions of the  withdrawal Bill suffered one of the heaviest government defeats in parliamentary history.

The new Prime Minister Boris Johnson – in a cynical manoeuvre that must have seen very clever at the time – dropped the ‘backstop’.

As this blog has previously set out, this was very much his measure – he changed the United Kingdom policy, he negotiated and agreed a revised treaty, he got it through parliament, and he obtained a majority for it in a general election.

Johnson used every power of the Prime Minister to get this new Northern Irish Protocol through Parliament, and at speed.

Parliament was denied any real opportunity to scrutinise the measure.

And Brexit supporters clapped and cheered this splendid wheeze so as to ‘Get Brexit Done.’

They are not clapping and cheering now.

For the cost of the Brexit which got ‘done’ was the Northern Irish Protocol.

At the time, this seemed a price Brexit supporters were willing to pay.

But now they do not want to pay it.

They want it both ways – they want the United Kingdom outside of the European Union but they now want to reject the only means by which that was possible in late 2019/early 2020.

Cakes, eating, and so on.

And so it was not surprising that May took an opportunity to respond to an intervention from a Northern Irish unionist MP who opposed her ‘backstop’ in the following terms:

She said:

“I put a deal before the House that met the requirements of the Good Friday agreement and enabled us not to have a border down the Irish sea or between Northern Ireland and the Republic of Ireland. Sadly, the Democratic Unionist party and others across the House chose to reject that, but it was an opportunity to have what the right hon. Gentleman wanted.”

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Had May had her way, however, there would have been alternative problems.

This is because of her early ‘red lines’ blundering, the only two withdrawal agreements available by late 2019, were the ‘backstop’ and Johnson’s calamitous clever wheeze of a border in the Irish Sea.

And this is because of the fundamental problem – that has never been addressed – of how one maintains an open border on the island of Ireland with no customs or trade infrastructure, if Northern Ireland leaves the European Union customs union and single market.

Some problems do not have solutions.

And, as this blog has also previously averred, it is not enough for those critical of Brexit (and this government’s Brexit policy) to point and jeer at the government and remind ministers that they negotiated and signed the Northern Irish protocol.

It may be satisfying, but it is not sufficient.

And any significant move in Northern Ireland does not need a mere majority, but actual consent from the nationalist and unionist communities.

This was pointed out yesterday by a unionist politician who had been opposed to Brexit:

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When May took office she insisted Brexit would mean Brexit.

She insisted that the United Kingdom would leave the European Union customs union and single market.

Yet a Brexit with the United Kingdom remaining within the single market was possible – and this is the basis on which other non-European nations trade with the European Union (as part of EFTA).

So she may have been right in her answer to the unionist politician yesterday.

But on a more fundamental level, she and other Brexit-supporting ministers got it very wrong.

**

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This is not a proposal for “a Bill of Rights” – this is semi-waffle in support of vanity legislation

10th May 2022

Today it was announced in the Queen’s Speech that there will be a “Bill of Rights”.

Some are alarmed at this proposal – and warn darkly (and perhaps correctly) that this will be a fundamental attack on the Human Rights Act 1998 and on the protections we have under the European Convention on Human Rights (ECHR), to which that Act gives effect in domestic law.

One plausible consequence of the proposal is that there will no longer be a a law called ‘the Human Rights Act’ in our statute books.

This post, however, will take a sightly different approach.

This post is one more of derision than of alarm.

For the proposal set out today is all rather pathetic.

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Let us start with the Queen’s Speech.

The relevant portion of the speech was this:

“My Government will ensure the constitution is defended. My Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.”

There is already a Bill of Rights – at least in the law of England and Wales.

That law from 1688 or1689 (depending on how pedantic you affect to be) is famous and significant, and it is one of few ancient pieces of legislation that those with an interest in such things can name.

Any government bringing forward a new (or revised) Bill of Rights would presumably be proud, promoting the legislation as a highlight of its new parliamentary schedule.

But this latest “Bill of Rights”?

It was 800 words into a 940-word speech

Even in the accompanying briefing for journalists, it made only page 118 of a 140-page document.

The Bill is not so much an initiative, but an afterthought.

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And now we turn to content.

There is no real content.

The government has not published the proposed legislation, and indeed the Ministry of Justice (MoJ) is not in a position to publish the proposed legislation.

The MoJ told me today that the consultation on the reform only closed on 19 April and the responses are still being reviewed.

This lack of content can also be seen in the briefing note:

“The purpose of the Bill is to:

● Introduce a Bill of Rights which will ensure our human rights framework meets the needs of the society it serves and commands public confidence.

● End the abuse of the human rights framework and restore some common sense to our justice system.

The main benefits of the Bill would be:

● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate.

● Curbing the incremental expansion of a rights culture without proper democratic oversight, which has displaced due focus on personal responsibility and the public interest.

● Reducing unnecessary litigation and avoiding undue risk aversion for bodies delivering public services.

● Tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.

The main elements of the Bill are:

● Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.

● Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope for judicial legislation.

● Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant. 

● Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award.”

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These three groups of bullet-points – ‘purpose…main benefits…main elements’ – indicate padding, and indeed the bullet-points are interchangeable between the sections.

Almost none of the bullet-points are concrete.

If anything they are almost all talking-points.

Some are semi-meaningless waffle – “restore some common sense” and “responsibilities exist alongside rights” are slogans rather than thoughts.

And to the extent any of these bullet-points do have meaning, their import is not to protect rights but to limit rights.

This is not a “Bill of Rights” but a Bill to, as far as possible, remove or restrict rights.

Only one bullet-point – and you can check if you doubt me – is even positive about substantive rights: “● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate”.

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Most significant of all – and this is what the government wants you to miss – is that this Bill of Rights will not substantially affect the position of the ECHR in the United Kingdom.

And this is because the Good Friday Agreement requires the United Kingdom to give effect to the ECHR in Northern Ireland.

If you look carefully at the proposals, there is mention of making sure the courts do not go further than the ECHR – “UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court” – but there is not (express) mention of getting rid of the ECHR in domestic law or any (express) suggestion that the United Kingdom follow Russia in leaving the Council of Europe.

So this proposal is, in part, an exercise in misdirection – an attempt to make it look like the government is ending the Human Rights Act but pretty much keeping the ECHR in domestic law.

*

Perhaps the government will put forward a Bill with more concrete proposals.

Perhaps the Lord Chancellor – facing chaos and crises in the court and prisons systems – will achieve his own political priority of replacing the Human Rights Act with some law that does much the same with a different name, but with added (and pointless) tinkering.

Perhaps any of this is worth the effort of new primary legislation – where (if needed) any changes could be done by amendment to the existing legislation.

Perhaps.

But.

The impression given by this proposal is that the new “Bill of Rights” is legislation for the mere sake of legislation.

None of the bullet-points – you can check – individually or together add up to the need for a new statute – let alone something with as hallowed and grandiose a title as a “Bill of Rights”.

On the face of today’s proposals, this is mere vanity legislation.

**

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The real problem with Beergate – and with Partygate

9th May 2022

There are many ways to look at the ‘Beergate’ political story – about the police investigation into what Leader of the Opposition did and did not do at (or after) a campaign function.

One way is to follow the political soap opera – and to ponder if the Leader of the Opposition will resign if he faces a penalty, if this will then backfire on the government supporters who have made this such a political story, and if voters will get tired and dismiss this and ‘Partygate’ with the shrug that says ‘they are all the same’.

Another way is to anxiously scrutinise the applicable law and to query whether the gathering was for work purposes or not.

And there is a third way, which requires stepping back to wonder if something more significant is going on.

Do ‘Partygate’ and ‘Beergate’ signify a shift in standard political tactics towards using reports to the police of one’s political opponents and encouraging investigations and sanctions?

For it is one thing to campaign against one’s political opponents.

But it seems another to actively seek that they face police attention.

Of course, from time to time – and in a society under the rule of law – politicians will get arrested, prosecuted, convicted and punished.

And that can be in respect of ‘political’ offences – such as regulate electoral matters – or more straightforward criminal activity.

Sometimes such investigations may have potentially important political implications – such as the cash for honours scandal about fifteen years ago, or the more recent parliamentary expenses scandals.

But in each of these cases, the involvement of the police seemed exceptional – and not part of the mundane, day-to-day politicking of Westminster.

And generally it seemed police involvement was not weaponised for political advantage (though there were one or two exceptions of minor Members of Parliament who liked referring matters to Scotland Yard).

Now, however, police involvement could not be more central to politics.

The fate of the Prime Minister and of the Leader of the Opposition depend, in part, on exercises of police discretion.

Not even a court is involved – just decisions of police officers as to whether it is reasonable to believe covid rules were broken.

(It would only become a matter for the courts if those police decisions are not accepted.)

Perhaps all this is just a one-off – just an extraordinary result of intrusive pandemic regulations that are no longer in place.

Or perhaps this marks a shift to using police involvement as a regular aspect of political activity.

So before we get carried away – one way or another – with clamouring for penalties to be imposed on which politicians you like least, perhaps we should think about where this is going.

For it may not be a good place for our politics to go.

**

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The Lord Chancellor’s extraordinary tweet about the Tracey Connelly case

6th May 2022

Here is a tweet from the Lord High Chancellor and Secretary of State for Justice (and a qualified solicitor):

It is a tweet that goes to one of the most important issues for any constitution: the respective powers of the executive and the judiciary in individual legal cases.

Tracey Connelly, as is widely known, was the mother of Peter Connelly, who died in 2007.

In 2008 she was convicted of “causing or allowing the death of a child or vulnerable person” – though not of murder or manslaughter – and she was sentenced to indefinite imprisonment for public protection, with a minimum term of five years.

It was reported that the then Attorney General considered referring the sentence to the Court of Appeal for being unduly lenient – but it seems no such referral was ever made, no doubt because the sentence was appropriate for the offence for which Connolly was actually convicted.

(Steven Barker was also convicted of this and another offence involving another child – and in respect of Peter Connolly’s death the sentence was for twelve years.)

That minimum of five years for Tracey Connelly expired in 2013 – and it appears she was released on licence from 2013-15 – but almost ten years later she is in prison.

This is because the Parole Board has, until recently, repeatedly refused her parole.

As the parole specialist Andrew Sperling explains in this useful and important thread, the test for the Parole Board is preventative rather than punitive:

Sperling also helpfully sets out that the Ministry of Justice participated in the Parole Board’s deliberations.

The Ministry of Justice officials all supported Connolly’s release.

This is the Lord Chancellor’s very own department.

*

The Lord Chancellor even had the opportunity to challenge the Parole Board decision – and that was rejected.

In a fully reasoned and detailed decision, each of the Lord Chancellor’s grounds for his application were rejected.

The judgment even contained these remarkable paragraphs:

Ouch.

The Lord Chancellor – seriously – instructed counsel to say that the Parole Board had not taken proper account of his views, but he did not and could not identify what those views were.

That is embarrassingly bad.

*

The Lord Chancellor now wants to do things differently.

He wants to be able, as a politician and a minister, to personally overturn decisions of the Parole Board even when his own department’s officials support release.

Presumably this would be a power that would be exercised in those few cases that are selected by the media to be notorious.

*

What is the Lord Chancellor’s motivation for wanting a ministerial veto?

Here, again, Sperling is spot on:

*

Let us look again at the extraordinary tweet of the Lord Chancellor:

There is no sensible doubt that the cruelty in the Connolly case was substantial and warranted significant punishment.

And the court sentenced her for that offence.

A sentence which the government did not (and probably could not) challenge at the time as being unduly lenient.

The question is whether it is now safe for Tracey Connelly now to be released.

That question has been considered, with reference to relevant material, by the Parole Board, an independent body, with input from the Lord Chancellor’s own officials.

An answer was then reached by the Parole Board, which the Lord Chancellor could and did challenge in court, and the the Parole Board’s answer survived that challenge.

And the answer the Parole Board reached was ‘yes’.

*

The issue is not that the executive should not have any role in questions of sentencing and probation in individual cases.

The executive should and does have a role.

The executive can refer seemingly unduly lenient sentences to the Court of Appeal.

The executive can make representations and submissions to the Parole Board.

The executive can apply so as to challenge a decision of the Parole Board.

This is how the separation of powers should and does work in practice.

Punishments should not be at the personal fiat of any minister, even that of the Lord High Chancellor.

**

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Russia’s flimsy constitution and the USA’s rigid constitution, and the notion that codified constitutions are necessarily a good thing

5th May 2022

From time to time this blog (and my commentary elsewhere) is accused of being against a codified constitution for the United Kingdom.

(A codified constitution is often also known – inexactly – as a ‘written’ constitution, but uncodified constitutions are usually written down, just not in one place.)

This accusation of being against a codified constitution for the United Kingdom is, in my view, unfair and incorrect.

A codified constitution for the United Kingdom may be a good and welcome thing.

Or it could be a horrible and unwelcome thing, entrenching domestic executive power yet further.

It all depends.

This is because codified constitutions can be good things or bad things.

The view of this blog (and my commentary elsewhere) is that a codified constitution of the United Kingdom is not necessarily a good thing.

And it rejects the casual plea ‘and this is why we need a written/codified constitution’ that often follows some political outrage.

A codified constitution is not a liberal panacea.

It is not even necessarily better than our current constitutional arrangements – so the alternative plea of ‘at least it would be a step in the right direction’ is also misconceived.

A codified constitution could be, from a liberal perspective, very much a step in the wrong direction.

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Codified constitutions are relevant to two of the current main international news stories – the Russian invasion of Ukraine and the likely overturning in the United States of Roe v Wade.

As this blog has previously set out, there are few constitutions which on paper are as liberal and wonderful as that of Russia.

And yet the Russian president had unlimited illiberal powers at home and no check on what he orders to be done (or attempted) abroad.

In the United States, the fundamental right of a woman of access to the means of aborting a pregnancy may no longer be a constitutional right, and thereby enforceable in all the states of the union.

This is because its status as a constitutional right rests only on mere case law, and not on the express provisions of the constitution itself.

And that, in turn, is because the constitution of the United States is difficult to amend generally, and it is practically impossible to amend on the issue of abortion – and so the constitutional right depended on litigation rather than on any formal enactment.

Other rights that seemed significant in the eighteenth century are set out in writing and cannot (easily) be removed.

Americans have the right to a well-regulated militia, but not a right to regulated and safe abortions.

But…. but….

…those are different, will come the defiant response of the constitution-mongers.

A codified constitution of the United Kingdom would be just right – not too flimsy, and not too rigid.

Perhaps this ideal codified constitution will be drafted by Goldilocks.

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Again, nothing on this blog should be taken to mean a codified constitution will necessarily be a bad thing.

But one should be critical, and one should not even presume that a codified constitution would tend to be a liberal panacea.

The government – backed by the considerable resources of the government legal service and the treasury panel of barristers – would seek to game any written constitution in the executive’s favour.

And against such a concert, mere wishful thinking will be no match

But…. but….

…this should be different, will come the response of the gamed constitution-mongers.

But.

Be careful what you clamour for.

A liberal constitutional order is not easy to achieve.

And that it may be the current arrangements without codification are more liberal than anything that the government would permit to be put in place as a codified constitution.

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Fundamental rights vs legal rights vs constitutional rights – the case of abortion and the United States Supreme Court

4th May 2022

Those with too much interest in law or politics will talk about different sorts or rights – fundamental rights, legal rights, constitutional rights, and so on.

Some of those people will even know what they mean by each of these (similar) terms.

Others, however, may find the feast of terms confusing.

This post is for those who want to better understand such terms.

And for the purpose of exposition, I will take the topical issue of abortion in the United States (which this blog covered yesterday)

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First, what is a ‘right’?

A right is the absolute ability to elect to do something in a given situation.

If that ability can be withdrawn by another, then it is better understood as a privilege, and not as a right.

If you need to obtain the prior consent of another before exercising that ability then it is not a right but a permission.

What makes it a right is that no prior permission is required and it cannot (easily) be withdrawn.

Sometimes these rights are expressly articulated and set out in a formal code.

And sometimes they arise by implication because of a certain legal state of affairs.

The right to an abortion under Roe v Wade in the United States is an example of the latter.

The Supreme Court held that it would be unconstitutional for there to be certain legal prohibitions on abortion.

This rested on a right to privacy, which is not expressly stated in the constitution, but was implied into the constitution by the court.

The right to abortion therefore is the implication of it being unconstitutional for there to be certain legal prohibitions in respect of people’s private lives.

And because Roe v Wade was decided by the Supreme Court on the basis of what was constitutional, the right is a ‘constitutional right’ .

This means that it is not open to Congress (on a federal level) or individual states to interfere with the right.

A lower level of right would be a legal right – for example, a right to an abortion as provided for in laws made by Congress or an individual state.

But such legal rights are subject to the constitution, and so if they do not conform with the constitution then they can be quashed.

This means that, if the Supreme Court holds that it is a matter for individual states to regulate access to abortions, but Congress purports to enact a nation-wide right to abortion, such a legal right may be struck down by the Supreme Court.

(Legal rights are useful, but constitutional rights are stronger.)

A third category of rights are ‘fundamental’ or ‘natural’ rights – these are rights which exist (or should) exist, independent of whether they are posited by the legal system.

Sometimes these rights correspond with constitutional or legal rights, sometimes they do not.

From a liberal perspective (the perspective of this blog), the right of a woman to elect to have an abortion is a fundamental right.

The principle is that – in general – it is for the woman to decide, and not a legislature.

(And if a legislator or voter is opposed to abortion, then they are free to not have one – but it should not be an absolute rule imposed on another.)

This general principle is subject to a limitation of there being a point in a pregnancy after which no abortion should be normally be performed – and views will differ on when that limit is.

But the fact that views will differ as to when that limit is does not mean that there should not be a general right to elect to have an abortion before that limit.

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If the Supreme Court do remove the constitutional status of the implicit right to an abortion then it may still be a legal right in some states, and it still will be a fundamental right, even if an ineffective fundamental right in other states.

If the Supreme Court overrules Roe v Wade, the only other way to return the right to an abortion to being a constitutional right – and thereby exercisable in every American state is for the constitution to be amended.

That would then put it beyond the grasp of an illiberal Supreme Court and any illiberal Congress.

But until and unless that happens, you have a fundamental right which may be a legal right in some states and not others, but is not a constitutional right.

And that – well – would not be right.

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Do you value this blog?

If so, please do support this blog, so that it can carry on for you and others.

These free-to-read law and policy posts every week day do take time and opportunity cost to put together, as do the comments to pre-moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

You can also become an email subscriber.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

For more on this blog’s Comments Policy see this page.