Category: Constitutional Law

When this government does not like a rule which binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule

3rd November 2021

There is an extraordinary situation today in the house of commons.

Yes, yet another extraordinary situation – and although such situations are becoming commonplace, they should never be regarded as normal.

The government is instructing its backbenchers to vote down a suspension of a member of parliament who seriously breached lobbying rules.

The government is also seeking to re-write those rules.

As the deputy leader of the opposition rightly said at prime minister’s questions: “when they break the rules they just remake the rules”.

And this, of course, is part of a trend.

Here is one colleague at the Financial Times:

And another:

The overall trend is that if this government does not like a rule which (supposedly) binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule.

It is not so much ‘one rule for them, and another rule for us‘ but no rules for them.

And this at a time where the authoritarians in government seek to impose more and more rules on the public – especially those who its political and media supporters do not like.

At base this is not even about ideology.

There is nothing here so grand that can be articulated as any broad principle or general theory.

This is just akin to gangsterism.

Those under the protection of the centre – and those at the centre – should face no constraints on their autonomy.

While those on the outside of this protection, are under what ever obligations that centre believe should be imposed.

The problem for this being a driver of government in a democratic society is twofold.

First: not all governments exist forever, and there will be one point – eventually – where those on the inside will be on the outside.

And second: governments in a democracy ultimately require legitimacy – and doing ‘what works’ cynically can eventually have a counter reaction when the government needs broader support than whatever it can get away with.

So these antics may be clever, but they are not wise.

The public may not care now – and it may not ‘cut through’ – but sensible heads should steer the government away from this illiberal and misconceived approach.

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Budget special: the Fiscal State vs the Legal State

28th October 2021

Over at the London Review of Books there is a fascinating and informative review by Ferdinand Mount.

The review is of a book by Julian Hoppit about the history of tax and spending in the United Kingdom (which I have not yet read), but there are some thought-provoking points in Mount’s review.

The points in the review are, in effect, useful counter-balances to the usual critique of the United Kingdom constitution on blogs like this one and from other liberal constitutionalists.

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This usual critique is that there is an inherent illiberal problem with the constitution of the United Kingdom: that the doctrine of parliamentary supremacy creates a real scope for political dictatorship – even if this possibility has not (yet) been fully realised.

There is nothing to stop it, for there is nothing that can gainsay the legislative supremacy of parliament – and so an executive with an ascendancy in parliament faces no ultimate checks and balances.

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It was not always like this, of course.

In the early 1600s, the great lawyer Edward Coke averred that there were limits to what could be done by acts of parliament:

“for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void”.

But the political facts of the civil wars of the mid-1600s and of the deposition of a reigning monarch in 1688 meant that parliament became, in practice, legislatively omnipotent.

And this political reality was fixed into rigid ideological doctrine in the late 1800s by A. V. Dicey, whose articulation of the sovereignty of the crown-in-parliament has been orthodoxy ever since.

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As this doctrine of parliamentary supremacy took hold, there were voices of alarm.

In 1929, the sitting Lord Chief Justice – Hewart – published The New Despotism warning of the implication of the power of a government that controlled the legislature, for it would tend “to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme”.

In 1976, the Tory (former and future) Lord Chancellor Lord Hailsham warned of an “elective dictatorship”.

Both Hewart and Hailsham were experienced politicians as well as senior judges, and they could see how flimsy were the ultimate checks and balances on the executive.

All we had to rely on is what the constitutional historian Peter Hennessy has described as ‘the good chaps theory of government’.

This described how self-restraint was the primary reason why the executive did not carried away with its unchecked constitutional power.

And in an age of Boris Johnson and Dominic Cummings (and of Donald Trump and Steve Bannon), this is not a comforting prospect.

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So how did we end up like this?

Why has the United Kingdom state almost sleepwalked into creating the conditions where raw executive power is effectively unchecked?

Mount’s review provides an interesting explanation.

The explanation is that this was not any conscious political intention, but the implication and by-product of the fiscal state.

Here Mount’s review starts with this wonderful anecdote:

“‘You were so generous, you British,’ Hans-Dietrich Genscher, West Germany’s perpetual foreign minister in the 1980s, once remarked: ‘You gave us a decentralised federal structure and a proportional system of election so that never again could we concentrate power at the centre, but you took neither of these for yourselves.’ Canadians and Australians could say much the same […]”

Mount then explains why we did not take the liberal constitutionalist course we imposed on others:

“The answer provided by one strong, perhaps dominant, tradition in English historiography is that monarchy, single rule, is a remarkably effective system, the secret of England’s survival and, for many centuries, the driving force behind the expansion of its power. Hence monarchy’s enduring popularity. […]

“Kings of England commanded a range of power and control over all subjects which outdistanced supposedly greater monarchs on the Continent.’

“This power consisted, above all, in the capacity to collect taxes. There were popular eruptions and, of course, exceptions (smuggling was one nagging drain on revenue), but between the poll tax riots of 1381 and the poll tax riots of 1990, what’s remarkable is the docility, by and large, with which the English paid their taxes, even when they reached monstrous levels to finance the Napoleonic Wars and the world wars of the 20th century.

“[…] after each convulsion – the Civil War, the Glorious Revolution, the Great Reform Bill, universal suffrage – the essential supremacy of the queen-in-Parliament (‘absolute omnipotence’, in Dicey’s phrase) re-emerged virtually unchanged.

“In this version of history, Parliament itself is reduced to a serviceable appendage for securing popular assent.”

(By the way, Mount’s review is more nuanced than the quotations above may indicate, so don’t take those quotations as the entirety of his stated position.)

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In other words: what makes no sense – and is akin to madness – from a liberal constitutionalist perspective, makes perfect sense from a fiscal perspective.

The executive’s abilities to impose taxation and to obtain revenue, and to have general consent in doing both, benefits greatly from the crown-in-parliament.

Translating finance bills in to acts of parliament is the thing.

And because of this, few front-rank politicians of any party would want to question, still less disturb this happy political situation – other than legal-political observers like Hewart and Hailsham.

Politicians and parties simply want the keys to this efficient fiscal-legal-political state.

And indeed a great deal of the United Kingdom constitution – and its history – is best understood from a fiscal perspective – including the respective powers of the two houses of parliament following the 1909-11 constitutional crisis.

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But.

What happens when the priorities of a government are not limited to the mundane business of tax-and-spend, but expand instead to wanting to use the executive in hyper-partisan exercises to stoke endless culture wars, and so on.

For not only do new ministers get they keys to the efficient fiscal-legal-political state, they also get the keys to unchecked executive power more generally.

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What is useful about being informed (or reminded) as to why the constitution of the United Kingdom came to be in its current arrangement is that at least it explains a thing which is a horror from a liberal constitutionalist perspective.

And it forces the question: can the constitution of the United Kingdom be reformed so as to become less of this liberal constitutionalist horror without losing the fiscal-legal-political efficiency that politicians (and – presumably – their voters) find so attractive and will not plausibly relinquish?

This is a difficult question.

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‘Parliamentary Sovereignty’ and ‘Parliamentary Supremacy’

24th October 2021

In the Attorney General’s interesting recent speech on judicial review, there is the following passage:

“But this flexibility, this resilience, should not obscure the central principle embedded in the very heart of our constitution, of fundamental importance since at least 1689.

“That principle is Parliamentary Sovereignty – it both underpins and anchors our constitutional settlement.

“I agree with the position as advanced by Lord Bingham in Jackson v Attorney General:

“‘The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament . . . Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.'”

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The sharp-eyed among you may have noticed that the speech here switches between ‘parliamentary sovereignty’ and ‘the supremacy of the Crown in Parliament’.

Two s-words.

And you can see that the second s-word used is qualified by the term ‘Crown in Parliament’.

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Some use the two terms ‘parliamentary sovereignty’ and ‘parliamentary supremacy’ interchangeably, as constitutional synonyms.

I try to avoid doing this, as I think there is a distinction between the two.

This is because parliament, in and of itself, is not sovereign.

What may be sovereign is, as Lord Bingham was careful to say but the Attorney General was not, is ‘the Crown in Parliament’.

An Act of Parliament – following royal assent – is the supreme law of the land.

But nothing else done by parliament is ‘sovereign’.

For example: a parliamentary resolution or standing order binds only parliament (if at all)

And statutory instruments can be struck down by the courts as ultra vires the parent Act of Parliament.

Parliament is only sovereign when its primary legislation is endorsed by the crown – and not in respect of any other activity.

Even the limits of so-called parliamentary privilege are subject to judicial construction and interpretation.

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The former appeals judge Stephen Sedley avers – correctly in my view:

“It needs to be understood, because events in the earlier part of [the twentieth] century have obscured it, that there are within the separate powers of the modern British state two sovereignties, those of Parliament and the courts.”

Sedley in turn quotes Lord Bridge from a 1991 House of Lords Case, X Ltd v Morgan Grampian (Publishers) Ltd:

“The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.

“In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.”

In other words: in interpreting and applying the law – but not in making or unmaking the law – the courts are sovereign too.

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This is not – or should not be – a surprise.

The sovereign entity in the United Kingdom is – as the label suggests – the monarch.

In law-making, the Crown and parliament are sovereign.

But in interpretation and application of the law, the Crown and the courts are sovereign.

Indeed, if you ever wander into a formal courtroom, you will often see the crown above the head of the judge.

(And just as those in the armed services salute the badge and not the person of a senior officer, when lawyers and others in court ‘all rise’ they are effectively paying respect to the source of the court’s power, and not to the person of the judge – or at least that is what you can tell yourself.)

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None of the above takes away from the legislative omnipotence of parliament in enacting primary legislation.

And it is certainly not an error to say ‘parliamentary sovereignty’ when one speaks of primary legislation.

But to do so may imply that parliament is the only form of state sovereignty in the United Kingdom (at least in England and Wales).

And it may imply that parliament is sovereign in some other respect than in enacting primary legislation.

Her Majesty’s Courts are, well, the Crown’s too.

And in interpretation and application of the law, the Crown and the courts are as sovereign as the Crown and parliament is in making and un-making the law.

So that is why – though it is only a personal preference – I tend to say ‘parliamentary supremacy’ – and not ‘parliamentary sovereignty’.

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The Supreme Court judgment in Majera – court orders have to be obeyed, even by the Home Secretary

21st October 2021

Yesterday, while lawyers and commentators were discussing the recent speech by the Attorney General, the Supreme Court of the United Kingdom handed down a judgment that may be more significant than anything the Attorney General said and what others will say about that speech.

The case is that of Majera – and it is about immigration and deportation, but it is about a lot more than that.

Majera was born in Rwanda and came to the United Kingdom as a child, but in 2006 he was convicted of serious offences, and when in prison he was issued with a deportation order.

He was then released on licence in 2015, but was again detained, and so he applied to the relevant tribunal for bail, which was granted in a court order.

So far, so complicated – though not an unusual set of facts in the ever-expanding caselaw about deporting foreign-born convicts.

But Majera then did something that prompted even more litigation and led ultimately to yesterday’s significant Supreme Court judgment.

Majera volunteered to work in a charity shop.

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You would think that it would be a good thing for a convict facing deportation to contribute to society by doing unpaid work for the public good.

But: no.

This was intolerable for the Home Office.

The problem, however, was that the tribunal order granting bail did not preclude Majera from working on a voluntary basis, but from paid employment or from any business or profession.

(The other bail conditions were strict: Majera could only do voluntary work as approved by his supervising officer – so not any voluntary work but only that which a state agent endorsed, and he was subject to a curfew.)

The Home Office, disregarding the judge’s order, formally notified Majera that he could not do voluntary work – and when objections were made, the Home Office came up with various excuses which they abandoned on legal challenge.

And so Majera challenged the Home Office decisions, as he was entitled to do so.

The Home Office, in response, came up with the argument that the judge’s order on bail was invalid, and thereby void, as it contradicted another statutory provision.

Accordingly, the Home Office contended, it was perfectly open to the Home Office to disregard the judge’s order and impose conditions of their own.

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Majera won his challenge.

But.

The Home Office appealed.

It would seem the prospect of Majera working in a charity shop was so unacceptable that public funds were justified in taking this to the Court of Appeal, and so the Home Office did, instructing a QC to do so.

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The Court of Appeal decided in favour of the Home Office.

Their reasoning was that if a decision is void then, well, it is void.

If the judge did not actually have the power to make the order that was made, then the order disappeared in a puff of legal magic, and it should be treated as if it never happened.

The order would have no effect, by the automatic operation of a lack of law.

Here the appeal judges relied on cases where subordinate legislation and administrative decisions were held to have no legal effect because they were ‘ultra vires’.

Majera appealed, and the Supreme Court agreed to hear his appeal.

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The Supreme Court, in a unanimous decision led by Lord Reed the president of the court, granted Majera’s appeal.

The decision is a wide-ranging survey of the law of ‘ultra vires’ and a detailed critique of vague notions such as ‘void’ and ‘null’ when applied to things that otherwise would have legal effect.

It is a judgment that will repay careful reading.

In essence: the supreme court held that orders of the court were special, and so should not have been lumped together with ‘ultra vires’ subordinate legislation and administrative decisions by the Court of Appeal.

A court order must be obeyed until and unless it is set aside by the court (or possibly overtaken by legislation).

It was not open to the home secretary – or anyone else – to pick and choose which orders were valid or invalid.

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This is a judgment that is significant on its own terms – but (on first glance) it also may be one with wider implications.

For example: one of the government’s current legislative proposals for judicial review is about giving courts the power to make ‘suspended’ quashing orders that would limit the legal effects of a finding of ‘ultra vires’.

Another government proposal is about limiting the scope of judicial review in the tribunal system – and this case shows that it is not only the individuals but the state itself that can take bad public law points in claims and defences.

This may not be a judgment that was intended to contribute to the discussion about judicial activism and the reform of judicial review, but it may be an important contribution nonetheless.

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But it is certainly an important case about the separation of powers.

For just as in a recent judgment in favour of the home secretary, Lord Reed said that is certain cases, the courts should accord ‘respect’ to the home secretary, this case in turn is about the respect the executive – and everyone else – should accord to the orders of the court.

Even the home secretary.

For just as the Lord Chancellor and the Attorney General are warning judges to keep off the executive’s lawn, this is the Supreme Court, in effect, telling the government to keep off the lawn of the courts.

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The Executive Power Project continues – the interesting speech of the Attorney General

20th October 2021

There is a thing called the Judicial Power Project, which – as its name does not suggest – is not really about judicial power.

The project is about promoting executive power and is generally against any judicial check or balance of that executive power.

Sometimes it may affect to be defending ‘parliament’ or ‘the people’ against the judges – but it will complain of cases (such as the Miller cases) where the courts have been resolute in upholding the democratically elected parliament against the executive.

This executive power project had been fairly quiet in recent times – but it is back.

The Attorney General has made a speech – and it is not a flimsy speech – setting out a general critique of judicial power which could have been written by the executive power project themselves.

In one way, we should be grateful – for it is useful to have the arguments and contentions (and the case references on which those arguments and contentions rest) all in one accessible place.

And it is also good that it was done in a speech before a serious legal audience – and thereby ‘on the record’ – as opposed to briefed to the media or in an interview with a political reporter.

One does not have to be a great fan of the current Attorney General to admit that this was the right way to set out this general critique.

But.

The speech is not compelling – and this blog will in a few days set out a reasoned response to the speech.

It is, however, my tribute to the speech that it cannot be dismissed within a few minutes of reading it by a scathing blogpost.

The scathing post on this blog will have to take a bit longer.

In the meantime: here is a YouTube video Professor Mark Elliot, one of the leading experts in this area:

And this is his thread:

At least this speech means there is now the possibility of a proper political and policy discussion – or even a debate – about this general issue.

I will put up my post on the speech in a day or so.

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Lord Chancellor, there is already a mechanism for the law to be changed: it is called Parliament

18th October 2021

Usually when something daft about policy is reported in the Sunday papers, you can sort-of work out the chain of miscommunication.

For example: minister to ‘special adviser’ to time-poor reporter on a background (and thereby to be re-worded) basis.

There is little wonder that the final report is often, well, inexact.

But.

In yesterday’s Telegraph, there was a report based on an on-the-record interview with Dominic Raab, the new lord chancellor and justice secretary.

And as an on-the-record interview, the usual disclaimers do not apply.

This would be what the minister actually said (or a close approximation).

News reporters can be guilty of many sins, but they rarely make up direct statements, and still less quotations.

And the lord chancellor and justice secretary is reported to have said something very striking indeed:

‘Asked about his plans to reform the Human Rights Act, Mr Raab revealed that he is devising a “mechanism” to allow the Government to introduce ad hoc legislation to “correct” court judgments that ministers believe are “incorrect”.’

The scare-quotes are lovely – but they do indicate these are the words that Raab actually used, as opposed to the rest which may be paraphrased.

Just read that statement again.

And think about it.

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First: it is not for ministers to change the law on the basis of what they think are ‘correct’ or ‘incorrect’ court judgments.

This is about as basic a breach of the separation of powers as one can imagine.

Just as judges should not make policy decisions instead of ministers, ministers should not make judicial decisions instead of judges.

If a minister disagrees with a judgment then that is one thing – but it is not for the minister to gainsay the judge on the correctness of the law.

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But that is not even the strangest thing about the statement.

Raab wants to devise ‘mechanism’ for ministers to make these ‘corrections’ – and not parliament.

But it should be parliament, operating under the doctrine of parliamentary supremacy, that should make or unmake any law in these circumstances – and by the means of primary legislation.

What Raab is proposing is a separate ‘mechanism’ where (a) laws can be made or unmade by ministerial decision and (b) that decision will be based on a minister subjectively thinking that a judicial determination is ‘incorrect’.

And note: this is not just for any old laws.

Oh no.

This is for those laws where a court – usually a senior and experienced judge or panel of judges – has found that there has been a breach of fundamental rights.

If any legal ‘corrections’ should not be done in a fast-track way, without parliamentary involvement and on the basis of mere ministerial opinion, then it should not be where a court has found there to be breaches of fundamental rights.

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In essence, what the lord chancellor and justice secretary is actually proposing is that a minister can by executive fiat reverse a judgment on the basis of a subjective opinion about ‘correctness’ when a court has found there to be a breach of a fundamental right.

Think about that.

And who is proposing this?

The very cabinet minister who has a constitutional role, recognised in statute, of protecting the rule of law.

Maybe the minister was misquoted or misunderstood, but there has not been any correction or clarification of the Sunday press report.

So presumably Raab is therefore happy with how he has been reported.

But.

There is already a mechanism where the other elements of the state can respond to such (perceived) judicial over-reaches.

It is called parliament.

And it is for parliament to decide how to respond – and to do by primary legislation.

And not ministers.

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Or in the words of the the government’s former chief lawyer:

 

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Last year judges were too activist, and now they are being reined in – but neither claim is correct

16th October 2021

Those who write about the politics of the judiciary in the United Kingdom have their very own two-for-one offer.

First, you write about whether the judges are too activist and need to be reined in.

Then, after a while, you write about how the judges are no longer too activist and have been reined in.

And loop.

Over at Prospect – the only United Kingdom current affairs magazine to take law seriously (and where I, ahem, currently have a column), there was this cover story back in March 2020.

The sub-headline asked us solemnly: have the judges overplayed their hand?

It was a great, well-researched and detailed article, and it rewards careful reading.

But.

I thought it was misconceived, and I said so in the April 2020 issue.

My contention was that there were (and are) two different things.

The first is the political-media narrative of ‘judicial activism’ – and this has a life of its own.

And then there is the mundane plodding everyday reality of the work of the administrative court and of public lawyers, where ‘ambitious’ points invariably fail and conservative judges certainly do not want to make policy decisions or trespass outside the judicial arena.

The two things have little in common.

Thrilling narrative v boring reality.

(Administrative law and public law are names for the special area of law which provides the legal obligations and powers of public bodies and the rights of those whose seek to challenge those public bodies, usually by ‘judicial review’.)

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Anyway,  Prospect now has a piece – lo-and-behold – explaining how the judges have been reined in:

“The government wanted to rein in the Supreme Court. Now it may not need to.”

Well, what a surprise.

This is not to say the piece is not great, well-researched and detailed – it is – and again it rewards careful reading.

But also – as before – it is in my view misconceived.

The mundane plodding everyday reality of the work of the administrative court is just as before.

As usual ‘ambitious’ points invariably fail and conservative judges still do not want to make policy decisions or trespass outside the judicial arena.

What has actually happened is that the political-media narrative has swung around.

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‘Judicial activism’ has long been a political-media rather than a legal event.

The two Miller cases are exceptional – dealing with distinctive (and literally unprecedented) constitutional predicaments and were (and are) not representative of the general casework of the courts.

The last real bout of judicial activism in administrative law ended in the early 1990s, with cases like M v Home Office (a decision far more significant in general public law terms than either Miller case).

And even that 1980s/1990s bout was nothing compared to the big shifts in 1960s, where cases such as Ridge v Baldwin, Padfield, and Anisminic created public law as we now know it.

Other than the extraordinary but unique Miller cases, public law has generally been dull for the last few years.

(I know this because I became a lawyer at the turn of the century so as to do public law, and it really has not been an activist area of law.)

The fact that the recent government-supported review into reforming judicial review was such a damp squib was because it was based on what the courts were actually doing – and not on what the political-media narrative said the courts were doing.

Almost all the leading cases are still from the last century.

The main principles are still those asserted in the 1960s and then articulated in the 1984 GCHQ case: irrationality, unreasonableness, and procedural irregularity.

However: wait another year or so and there will again be earnest concern about ‘judicial activism’.

Then some time after that the judges will be ‘reined in’.

And so on – until it is perhaps finally realised that the media-political narrative of ‘activist judges’ has a life of its own, and is not closely connected with the general public law work of the courts.

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Why does it matter if the United Kingdom government breaks international law? And do such a breach really mean the Rule of Law is under threat?

12th October 2021

Yesterday many celebrities of legal Twitter were engaged in a detailed discussion about whether the government of the United Kingdom was really threatening ‘the rule of law’.

(Celebrity in legal Twitter is akin to what Jasper Carrott once said of the disc jokey Ed Doolan: world-famous in Birmingham.)

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The discussion was prompted by this thought-provoking tweet and thread from @SpinningHugo:

The proposition is as follows: (a) nobody disputes that the United Kingdom breaking international law is a bad thing; (b) but the reason it is a bad thing is not because it offends the ‘rule of law’.

The proposition contains a clever and subtle distinction, and the tweeter (who I do not know personally) puts it forward with characteristic charm and the confidence that is an endearing quality of their Twitter account.

But I fear it is not entirely correct.

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What is correct is that the phrase ‘the rule of law’ can be deployed almost unthinkingly.

And the notion of a thing offending ‘the rule of law’ can also be too easily adopted.

Not every unlawful action by a government is an assault on the ‘the rule of law’.

A government can commit a tort or some other civil wrong; a public authority may act outside of its powers; and agents of the state can commit criminal offences.

That in each instance the courts are capable of holding the relevant entity or individual to account is an example of the rule of law working, rather than it being subverted.

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What is also correct is that ‘international law’ is not like other sorts of law.

For example, much of it exists without any practical means of enforcement or even adjudication.

At law school, I heard an eminent professor describe international law as ‘a fiction’.

There is a saying that domestic law is a matter of law, foreign law is a matter of fact, and international law is a matter of fantasy.

And there is another saying that if a rule is not capable of enforcement then it is not really a ‘law’.

If these sayings have any purchase, then an assertion that there has been breach of international law may perhaps have a political or normative meaning, but it does not necessarily have much legal meaning.

And so a breach of international law by a nation state is not by itself enough to say that the very principle of ‘the rule of law’ – which is attached to all law, domestic and international – is being attacked.

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And, for completeness, ‘the rule of law’ is not always necessarily a good thing.

Many evil things – from slavery to torture – can be placed on a legal basis, and compliance with such laws is not a good thing.

To the extent that we should care about the principle ‘the rule of law’ then other principles are at least as important, such as equality, due process, accountability, democracy, legitimacy, the separation of powers, universal human rights, and so on.

The rule of law, and nothing else, can sometimes be indistinguishable from tyranny.

*

But.

I think @SpinningHugo makes two errors.

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The first error is to suggest (by implication) that the breach of international law by the United Kingdom is not capable of being an attack on the principle of ‘the rule of law’.

There are breaches, and there are breaches.

And some breaches can be trivial or substantial examples of non-compliance, and some breaches can be intended or designed to undermine systems (if they exist) of enforcement and adjudication, and may also create a moral hazard that discredits the legal regime more generally.

Such breaches not only mean a rule has been broken, but that the very rules themselves are placed into peril.

In essence: some breaches of international law are also demonstrations that a state actor simply does not believe that legal rules apply to them.

And as ‘the rule of law’ – if it means anything – means that all are subject to the law, then – logically – such an act of open disavowal can only violate that principle.

In essence: any state actor is capable of breaching international law in a manner that undermines the general principle that the law should be obeyed.

Even the United Kingdom.

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The second error is to aver that the recent (and ongoing) post-Brexit conduct of the United Kingdom is not itself a threat to ‘the rule of law’.

(So not only is the United Kingdom capable of breaking international law here in a way that is a threat to the rule of law, but that it is actually doing so.)

The United Kingdom government last year sought to legislate so as to deliberately breach obligations it had entered into under the Northern Irish protocol.

The protocol provides legal obligations on the United Kingdom (and the European Union):

(a) that were freely entered into,

(b) that are capable of enforcement and adjudication through an agreed formal process; and

(c) which have been placed into domestic law by statute.

The Northern Irish protocol is therefore, by any meaningful definition, ‘law’.

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Last year the United Kingdom government was not about to breach the Northern Irish protocol by accident or through recklessness, or on the basis of a grey area of interpretation.

The United Kingdom government intended to breach the the Northern Irish protocol – by deliberately using domestic legislation.

This was, in essence, the United Kingdom government asserting that a legal obligation did not bind it.

Since that threatened (but withdrawn) threat the government has not been so blatant in its commitment to law-breaking.

Yet it is still seeking ways for it to avoid or ignore a legal commitment it entered into, on the basis of a belief that some legal commitments do not apply to the United Kingdom.

This instance of subversive intent, if translated into solid political action, is a threat to ‘the rule of law’.

It is not just that the United Kingdom government will break a legal commitment.

It is also not just that the United Kingdom government does not care that it will break a legal commitment.

It is because the United Kingdom government is intending to break a legal commitment on the basis that it does not believe that it should be bound by that legal commitment.

For such a move not only is a breach of a particular rule, but a fundamental repudiation of the general principle that a legal command should be obeyed.

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Perhaps some may say that some legal commands should not be obeyed.

But we should not fool ourselves into thinking that such disobedience is not a breach of ‘the rule of law’.

It is a breach of ‘the rule of law’ – but it is a breach that you think does not matter.

It is to assert that ‘the rule of law’ sometimes does not matter absolutely.

And that – well – is a different proposition to saying that a breach of international law cannot be a breach of ‘the rule of law’.

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Understanding the hostility to the Human Rights Act – and why this matters

7th October 2021

This week the lord chancellor and justice secretary – in 2021 – had to resort to a 2009 case – where the law had already changed in 2014 – to support his demand for an ‘overhaul’ of the Human Rights Act 1998.

That was telling.

Those opposed to the Act often seem to find it difficult to find topical examples of cases to substantiate their disdain.

Some resort to blaming cats (and I am not making this up).

And so, if it is not the actual substance of cases under the Act that explains the antipathy to the legislation, what is the explanation?

What are the actual reasons why the Human Rights Act 1998 is so hated?

I think there are four reasons.

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The first reason is its very title and its express mention of ‘human rights’.

For many this title seems alien – and provocative.

It is as if ‘human rights concerns’ are something you tell off foreigners about, rather than it being something that is of any domestic relevance.

The view seems to be that there is no need for ‘human rights’ in regard of the United Kingdom – for we have liberties.

This is, of course, misconceived – both in theory and practice.

In theory – because we have an executive under little or no day-to-day scrutiny, where state officials have unlimited power, and where the legislature has absolute power to make or unmake any law.

And in practice – taking torture, for example, there are documented examples of torture and inhuman treatment by United Kingdom agents in Northern Ireland, Afghanistan, Kenya, and elsewhere.

But we pretend that the United Kingdom is not like that – that we are always the good guys.

Yet the United Kingdom and its agents are as capable – both in theory and practice – of human rights abuses as in any other state.

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The second reason is that the rights that the are given effect by the Human Rights Act are (seen as) ‘European’.

This is a similar sentiment to the hostility to the European Union that contributed to Brexit.

And it is the ‘E’ word that seems to make all the difference.

The United Kingdom has human rights obligations under various United Nations instruments, and few know and fewer care.

We are also subject to fundamental obligations as members of international organisations such as NATO and the World Trade Organisation.

And those who jeer at the ‘E’ word will somehow be horrified at suggestions that the United Kingdom renege on its obligations under NATO and the World Trade Organisation, even if they limit our autonomy in defence and trade matters respectively.

The European Convention on Human Rights (ECHR), however, could not – for some – be more provocatively named.

Had it been called, say, the British convention – and many treaties are named after places – or the Winston Churchill convention, after one of the politicians who supported it – then, at a stroke, the regime would be less contentious.

That the the rights are seen as ‘European’ is, of course, a misconception.

The ECHR instead was formulated in part by British lawyers seeking to codify for post-war European what they perceived to be rights existing in our domestic law.

Had it been called the British convention or the Winston Churchill convention, it would not have been that misleading, given the United Kingdom’s contribution.

But instead the ECHR provisions – and thereby the Human Rights Act – are European.

‘Ugh.’

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The third reason is that the Human Rights provides rights for humans, including the humans many do not like.

The rights are not only for nice people but also for the Other: the people who are so bad or undesirable that many believe that they should be treated inhumanely.

For example: foreign criminals, domestic criminals, asylum seekers, and so on.

Why should these people have rights?

The sentiment is that such people should not have rights, because they don’t deserve them, or that they have forfeited them.

But that is the nature of human rights: you have them because you are a human.

But if the Other use their rights, then that ‘use’ is instantly converted to ‘abuse’.

You may ‘use’ your rights, but they – they ‘abuse’ their rights.

The notion is that those facing the coercive powers of the state – say incarceration or being separated from their families – should smile and nod along with that coercion, and certainly should not interrupt clapping and cheering those being coercive.

But it those who are facing the coercion of the state, especially those where there is no public sympathy, who are most in need of human rights.

If you think about it.

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The fourth reason is about the failure of the Human Rights Act to get ‘buy-in’ from certain media and political groups since its enactment.

Here there is a contrast with, for example, the United States – say if a citizen did not like a particular right in the Bill of Rights (for example, the right to bear arms), that citizen would be unlikely to be in favour of repealing the entire Bill of Rights.

But in the United Kingdom there are many who do not see that the rights in the Human Rights Act protect them as well as the Other.

And part of this is – in my view – the fault of the courts themselves.

After the Act took effect, the courts moved rapidly to ‘develop’ (that is, invent) a new tort of privacy.

A right that was enforced in cases against the media.

But the corresponding right of free expression enjoyed no similar ‘development’ – and over twenty years later, it is difficult to cite a case where the right to free expression has made a difference, let alone led to the ‘development’ of the law.

No United Kingdom journalist, unlike their American counterparts, would ever think to assert loudly and proudly their legal right under Article 10 to free expression.

Had the British courts made Article 10 (free expression) as meaningful as Article 8 (privacy) then the British press would be as horrified at the prospect of repeal of the Human Rights Act as the American media would be at the repeal of the entire Bill of Rights, including the right to a free press.

The populist media of the United Kingdom are not aware that the ECHR and the Human Rights Act protects (or should protect) them as well as the subjects of their coverage.

If the Article 10 right of free expression had been taken half-as-seriously by British judges as the Article 8 right to privacy, one suspects no politician would dare suggest ‘overhauling’ the Human Rights Act as a whole, let alone its repeal.

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As this blog recently averred, at the heart of the issue of the Human Rights Act is symbolism, not substance, and for both ‘sides’.

The Act does not actually do a great deal, but it does enough to make a difference in certain situations.

But the main reason for its repeal (or ‘overhaul’) seems to be the sheer symbolic value in doing so, and the main reason to oppose such moves is the equal-and-opposite sheer symbolic value in preventing those moves.

And so the Act is caught up in political and media battles that have little or no connection to the Act’s actual legal significance.

It is almost as if the Human Rights Act in the political and media imagination has an autonomous existence, distinct from the actual legislation and what that legislation does.

But.

There is a problem here.

A real problem, which sensible liberals should not ignore.

Some legislation – for example, equalities law – can start off controversial but will become less controversial as the years go by.

Laws such as the Race Relations Act were – believe it or not – controversial at the time.

The Human Rights Act – twenty-one years after it took effect  – remains controversial and – in good part – unloved.

It has not simply become embedded as part of the political consensus.

And that is a failure.

A failure that cannot be wished away.

So there is a question for all sensible people, who support human rights in general and the ECHR in particular: are there better ways of protecting these substantive rights than by the Human Rights Act?

For it is those substantive rights, and their availability to those who need to use those rights, that are the important things, and not their legal form.

The Human Rights Act 1998 is still not a popular piece of legislation in 2021, and unless those who value human rights think constructively about other ways of enforcing those same rights, there will be a risk that the Act and the rights it provides for will all topple together.

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How significant would the repeal of Human Rights Act really be?

3rd October 2021

Yesterday was the twenty-first birthday of the Human Rights Act 1998 taking full effect.

This statute gives direct effect in domestic law to rights contained in European Convention on Human Rights (ECHR).

The Act, however, may not be in effect for that much longer.

This is for two reasons.

First: the new lord chancellor and justice secretary Dominic Raab is a long-time critic of the legislation, and as a junior justice minister previously sought to get the Act repealed.

Second: there is a review soon to report that may be the occasion (or pretext) of the Act being repealed.

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How significant would repeal be?

In one way it would have to be of no effect: for the Good Friday Agreement expressly mandates the United Kingdom to ensure that the ECHR is enforceable directly in the courts of Northern Ireland.

Unless the United Kingdom seeks to breach the Good Friday Agreement then any repeal must not have the effect of making such direct enforcement impossible.

Another way in which repeal would have limited effect is that since 2000, the ‘common law’ has ‘developed’ so that domestic law is more consistent with the ECHR without needing to resort to relying on the Human Rights Act.

So, in a way, the stabilisers can now come off the bicycle – the direct effect of the ECHR has now had its beneficial impact, and we can now perhaps do without it.

And there is certainly no need for the legislation to have such a bold and (for some) provocative title: a replacement law could be boringly titled as the European Convention on Human Rights (Construction of Statutes and Related Purposes) Act.

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But the real reason why the repeal of the Act may not have a dramatic effect across the legal board is (in a stage whisper) it was never really that powerful an Act in the first place – even though it has had some impact on legal development.

For example, and unlike with European Union law, a domestic court could not disapply primary legislation for being in breach of a pan-European law.

Almost all the convention rights are ‘qualified‘ in that the government can often infringe those rights easily if it has its legal wits together.

And although there are some areas of legal practice – for example family proceedings and immigration appeals where convention rights can (and should) make a difference – these specific areas do not now need an entire Human Rights Act.

Also: there are many ways in which courts will still be able to have regard to the ECHR in interpreting and constructing legislation, even without the Act.

And as long as the United Kingdom remains party to the ECHR – and the current government says that this will not change – there will still be the right of United Kingdom citizens to petition the Strasbourg court if the United Kingdom in in breach of its obligations, as was the situation before the Act was passed.

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So: if the Act is repealed, it would not necessarily be a practical disaster.

The significance of the repeal of the Human Rights Act would be much the same as the significance of having such an Act in the first place: symbolism.

What some people put up, other people want to knock down.

If the Human Rights Act were a statue rather than a statute, Raab would want to throw it into the harbour, just for the sheer symbolism of doing so.

Splash.

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But as a matter of practical law, the general effect of repeal would not be that legally significant, especially if provision was made for it to continue to have effect in Northern Ireland and in specific practice areas.

Yet symbolism is important, rather than trivial and dispensable.

Having a statute called the Human Rights Act that expressly gives general domestic effect to our international human rights obligations and providing minimum (even if qualified) rights is a good thing in itself.

And so, even if the practical significance of repeal would not be that great, it is still a Good Thing that we have the Human Rights Act.

Perhaps this review of the Act will be as mild in its proposals as the recent review on judicial review.

Perhaps, as this blog has previously averred, Raab would be well-advised not to use his limited ministerial time on this issue instead of dealing with the legal aid and prisons crises (and on this also see former lord chancellor and justice secretary David Gauke here)

Perhaps; perhaps not.

Perhaps there will be a direct hit on liberal sensibilities and that, this time next year, there will not be a twenty-second anniversary of the Human Rights Act still having effect.

Us woke libs wud be pwned.

But, even if repeal does come to pass, those twenty-one years were good ones for the development of our domestic law.

And so if the Human Rights Act is repealed, those twenty-one years of impact on our domestic laws will not (easily) be abolished.

The Act’s memory will be its blessing.

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