Category: Constitutional Law

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.

*

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.

*

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.

*

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.

*

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.

*

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.

*

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.

****

Please support this blog so that it can continue.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

If you value this free-to-read and independent legal and policy commentary – for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

******

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.

Comments will not be published if irksome

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.

****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

If you value this free-to-read and independent legal and policy commentary – for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

******

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.

Comments will not be published if irksome.

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.

*

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.

*

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.

*

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.

***

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

 

****

Please help this daily law and policy blog continue.

If you value this free-to-read and independent legal and policy commentary – for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £1 upwards for each useful post, or of £5 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

******

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.

Comments will not be published if irksome.

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’.)

*

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.

*

‘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.

*****

Please help this daily law and policy blog continue.

If you value this free-to-read and independent legal and policy commentary – for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £1 upwards for each useful post, or of £5 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

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.)

*

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

https://twitter.com/SpinningHugo/status/1447447283570774017

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.

*

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.

*

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.

*

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.

*

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.

*

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’.

*

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.

*

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’.

*****

Please help this daily law and policy blog continue.

If you value this free-to-read and independent legal and policy commentary – for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £1 upwards for each useful post, or of £5 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

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.

*

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.

*

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.’

*

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.

*

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.

*

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.

*****

This blog needs your support to continue, for your benefit and the benefit of others.

If you value this free-to-read and independent legal and policy commentary – for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £1 upwards for each useful post, or of £5 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

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.

*

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.

*

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.

*

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.

*

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.

*****

If you value this free-to-read and independent legal and policy commentary – for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £1 upwards for each useful post, or of £5 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Laws are to be suspended and the army is to be called in – and why we should be concerned when activating the law of civil contingencies becomes a civil necessity

27th September 2021

Once upon a time it would be sensational news that the army was to be called in and that laws were to be suspended.

It would indicate, perhaps, something about either a failed state or an unforeseen emergency, or both.

As it is, the news seems almost commonplace – and that it would be more exceptional nowadays for the news to be less sensational.

The laws that are to be suspended are competition laws – which (we are told) would otherwise prevent petrol companies from coordinating with each other.

I am not an energy law specialist – though I know a little about competition law – and it would be interesting to know exactly how current competition laws would prevent coordination in the current situation.

This law-suspension exercise has the grand name of ‘activating the Downstream Oil Protocol’.

*

‘Dispatch War Rocket Ajax.’

Flash Gordon screenplay, 1980

*

And the official statement is here, and it includes this:

‘Known as The Downstream Oil Protocol, this step will allow Government to work constructively with fuel producers, suppliers, hauliers and retailers to ensure that disruption is minimised as far as possible.

‘The measure will make it easier for industry to share information, so that they can more easily prioritise the delivery of fuel to the parts of the country and strategic locations that are most in need.’

As competition law in this respect is about preventing what would otherwise be cartel behaviour, then it would appear that the fuel industry want to (or need to) do something between themselves that would otherwise carry potential legal risk as cartel behaviour.

Perhaps more will be come clear on this as the protocol is activated, though it seems such relaxations of competition law have been done before in other recent emergencies:

If this is what is being done, we should note that the relaxations – or suspensions -of law do not have any real parliamentary oversight or control.

*

And now the army.

(Source)

But as this news report explains:

“It is understood that it would take up to three weeks to fully implement, because some of those mobilised may already be on other deployments and others could be reservists.’

And so, by the time the army arrives, it may be too late – and it certainly is not something that is intended to happen in the next few days.

This manoeuvre is known, it seems as activating ‘Operation Escalin’.

*

‘Dispatch War Rocket Ajax.’

Flash Gordon screenplay, 1980

*

Just as constitutional law should be dull and it is not a good sign when constitutional law is exciting, the same can be said for the law of civil contingencies.

It is not normal for laws to be suspended and for the army to be used for civil matters – and it should never become normal.

But.

The various problems facing the United Kingdom mean that what are civil contingencies are becoming civil necessities.

Brace brace.

*****

This daily blog needs your support for it to continue.

If you value this free-to-read and independent legal and policy commentary on Brexit and other matters please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £2 as a one-off, or of £4.50 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

Are President Biden’s comments on ‘the Irish Accords’ a life line for the Human Rights Act?

22nd September 2021

Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.

From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.

The question and answer are here and you should watch and listen for yourself:

You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.

Is she right?

And what is the connection between that exchange and the Human Rights Act 1998?

Here we need to see what the Good Friday/Belfast Agreement says.

In respect of the European Convention on Human Rights (ECHR), the agreement says the following:

‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’

and

‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.

*

These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.

The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.

But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.

This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.

Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.

But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.

*

So does this mean the Human Rights Act 1998 is safe?

I am not so sure.

I averred on this blog when Raab was appointed (and I am sorry to quote myself):

‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’

Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.

A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.

A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.

It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.

Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.

But we do not have a wise government – we have a silly government.

And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.

*

But the politics of symbolism does not just have one direction.

Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.

So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.

But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.

Three ways of looking at constitutions: institutions, functions, tensions

18th September 2021

Today’s post sets out something which has long interested me about constitutions, but I do not think I have set out in one place before.

It is about different ways one can approach thinking practically about constitutions – and why one particular approach is to be preferred.

By practically, I am making distinction with thinking theoretically or academically.

For such clever stuff other writers and texts are available.

*

There seems to be three broad ways of thinking practically about constitutions.

*

The Institutional Approach

The first approach is to have regard primarily to particular institutions – say the crown (which can cover various functions and other institutions); the prime minister and the cabinet and the Whitehall departments; the Westminster parliament; the various courts the devolved administrations; local government; the security agencies; the established church; and so on.

Here an account of, for example, the constitution of the United Kingdom will set out how all these institutions work together or muddle together.

*

The Functional Approach

The second approach is have regard primarily not to institutions but to functions – and the usual typology here is to separate out executive, legislative and judicial functions.

In many constitutions – especially the sort you and I are most familiar with – these functions will correspond generally with various institutions.

So the legislative function corresponds with, say, the Westminster parliament or the federal congress in the United States, and vice versa, and so on.

The advantage of this functional approach over the institutional approach is that it recognises that certain institutions can perform more than one function – and that a function may be performed by more than one institution.

Central government in the United Kingdom, for example performs an executive function (obviously); but also by issuing secondary legislation and various rules, will perform a legislative function; and in determining individual cases, will perform a judicial (or quasi-judicial) function.

By concentrating on what is being done – rather than on which institution is doing it – this functional approach is often more useful than an institutional approach.

But.

*

The Limitations of the Institutional and the Functional Approaches

By setting out institutions or even functions, there is the risk of having a limited understanding about how constitutions operate (or should operate) in practice.

You can end up having that naive notion that ‘all which is needed‘ for all political ills to be remedied is for there to be a written (that is, codified) constitution.

The simplistic notion that if only one set out the institutions of the state – or the functions of the state – with sufficient elegance in a single document then everything would be fine.

I have always found that approach not to be compelling – though for a long time I was not certain why this was the case.

But I think it is because neither the institutional nor the functional approach prioritise dealing with tensions and conflicts – that is, checks and balances, that prevent one group of people with public power doing whatever they want.

The institutional and functional models, for me, appear to regard tensions and conflicts as bugs not features of a constitution.

The (unspoken) notion is that, if things are going well, and a particular institution is doing what it should do, or those performing a particular function are doing as they should do, then there will be no conflicts.

Everything would be fine and neat.

Of course: when there are tensions and conflicts they should be regulated in some way, but that would and should not the the constitutional norm.

The happy idea here seems to be that if you just put in place the right written (that is, codified) constitution then there would be no or few tensions and conflicts.

*

The Tensions and Conflicts Approach

I prefer a third approach which does not see tensions and conflicts as a regrettable afterthought in constitution-mongering, but as central to any worthwhile constitutional arrangement.

This approach asks the following hard-headed questions.

How are those who make rules checked in practice, and by whom and on what basis?

How are those who make decisions checked in practice, and by whom and on what basis?

How are those who determine the disputes of others, or who decide on the rights and obligations of others, checked in practice, and by whom and on what basis?

How are those who seek to use coercive force – either in various uniforms or otherwise – checked in practice, and by whom and on what basis?

How are those who seek to invade the privacy of others – for whatever reason – checked in practice, and by whom and on what basis?

And so on.

This approach cares little for the institutional trappings of those seeking to impose power on others.

This approach is unsentimental about grand-sounding institutions such as the crown or parliament or the courts – and sees instead people, stripped of their glamours and baubles, who are seeking to impose their will on others.

This approach also does not assume that there is some perfect manner where those who perform functions – executive, legislative, judicial, or otherwise – can be entrusted to just get on with their jobs – with the rest of us just deferentially nodding along.

This approach instead makes conflict and tension central, rather than peripheral, to an understanding of any constitution.

It avoids the presumption that those who perform functions – executive, legislative, judicial, or otherwise – should get their way, unless there is an exceptional reason for them not to do so.

Of course, by recognising that there are such tensions and conflicts there is, in turn, the risk of stalemates and blockages.

But a practical constitution would set out how each of these tensions and conflicts are to be managed – rather than pretending that they do not exist, or are exceptional.

*

The question of a written (that is, codified) constitution

Elsewhere I have set out why – rare for a liberal – I am dubious about written (that is, codified) constitutions.

It seems plain to me – if not others – that written (that is, codified) constitutions can be illiberal devices, that will be more likely to entrench executive power than limit it.

But if there were to be a written (that is, codified) constitution in the United Kingdom, it should not start with institutions or functions but instead with checks and balances.

It should identify the foreseeable points of conflict and tension and then set out how they should be resolved and on what basis, and then work backwards from there.

Just like a well-drafted commercial contract starts from where there would be obvious disputes and works backwards to allocating rights, obligations and risks accordingly.

The problem with any worthwhile written (that is, codified) constitution for the United Kingdom – that sets out the practical ways in which those with any power can be limited – is that those with power would never allow it to be put in place.

*

Why the Tensions and Conflicts Approach should be used to evaluate any constitutional reform

But even without a worthwhile written (that is, codified) constitution that starts with tensions and conflicts and works backwards, there is (I aver) merit in approaching any proposed constitutional reform or political change not by asking about institutions or functions but by asking how will abuse and misuse of the reform or change be managed?

That is to assume, as a given, that any proposed constitutional reform or political change will be abused and misused by those with power.

For it is by expecting the worst, and acting accordingly, that one can accomplish any sustainable constitutional improvement.

And it is this dismal, hard-headed, realistic approach that (I aver) should be the basis of any practical consideration of constitutional questions.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.