Law is not magic – and lockdown regulations are not spells

19th December 2020

Of  course, law is not magic.

Magic is about old men in elaborate robes, in oddly furnished rooms, saying or setting down words in certain special orders that will then have real-world effects on those to whom those words are addressed.

Ahem.

In fact, law has a lot in common with magic – or, at least, magical thinking – and not only in the facetious characterisation above.

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If we move from the courtroom to government, and indeed to the public more generally, there is a common view that to make a law against something is to deal  with it.

A thing should be banned, and so just putting some words on a piece of paper – or on a computer screen – and then saying some magic words – either

Izzywizzylet’s get busy!

or

‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows’

or some other similarly daft formula, the words will leap from the page – or the screen – and will change the world around us.

This is a habit of thought with which we are so familiar that is difficult to dislodge it from our minds.

But just setting out words, and chanting some special phrases, has little direct effect on anything – other than in respect of what meanings, concepts and values we in turn give to those words.

And with prohibitions, more is often needed for a thing to stop than for the words to have been typed ‘this thing is prohibited’.

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For some people, a prohibition may be enough: they will know that a thing has been banned and will act – or not act – accordingly.

For others, however, the banned thing can just continue – it is just that there is a risk that further instances of the banned thing may now be attended with certain legal consequences and, ultimately, coercive sanctions.

A person faced with such a risk may chose to eliminate the risk and not do the prohibited thing, or they may instead manage or even disregard the risk.

But unless one is in a totalitarian society, the mere threat of a coercive sanction is not enough – most modern societies rely on government by consent, and the state does not have sufficient resources to police everyone completely.

Put simply: laws and sanctions are usually not sufficient to effect behavioural change.

Instead many prohibitions work not because of words on a page, or because of enforcement, but because the purpose of the ban is aligned with social norms and is accepted (broadly) as legitimate – that the ban makes sense and is for a good purpose and so will be respected.

If a prohibition is not accepted as legitimate –  if it does not make sense or seems unfair or disproportionate – then no amount of legal magic or coercive force will give effect to the prohibition.

The prohibition then just breaks down.

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And now we come to the lockdown regulations.

The belief appears to be that just by making laws against social activity – either during Christmas or otherwise – is by itself sufficient.

That the government should lock down more firmly – and if the government does not do this, then it will be the government to blame if the pandemic spreads.

But typing banny words are not enough, with or without magic phrases, and there is certainly not enough police to enforce such banny words.

A lockdown will only be effective if people actually regulate their social behaviour in reality.

The government could issue regulations until it is blue in its face, but if there is a disconnect with social behaviour, then it is futile.

(And the sensible response to this is unlikely to be ‘more laws!” and ‘harsher penalties!’ – just as it is rarely a solution to bang one’s head harder against the wall.)

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Law and laws are only one aspect of how those who govern us can influence and control our behaviour, to get us to change from what we would otherwise do.

People have to understand the purpose and point of prohibitions, rather than to just be expected to comply with them when they are imposed.

And for this a government needs to be transparent and credible: there needs to be trust more than law, and policy rather than policing.

There needs to be leadership.

Resources need to be in place for testing, tracing, and treatments.

Fair account needs to be taken of other possible priorities, even if those other priorities are less important.

Prohibitions and coercive sanctions still have a role – but they are not sufficient by themselves.

In essence, a government needs to govern, and not just make laws.

That is what govern – ments do.

There should be no magic to this.

*****

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The coded criticisms of the Attorney-General from both the Lord Chief Justice and the Court of Appeal

17th December 2020

The office of Attorney-General is at the very crossroads of law and politics.

As a lawyer, the Attorney-General is the government’s chief legal adviser and, by convention, is the head of the Bar of England and Wales.

They superintend the Crown Prosecution Service, and they can (and do) initiate contempt of court proceedings against the media.

A further role is that they can act in proceedings where they represent the public interest and/or the government.

They also can decide to refer cases to the court of appeal where it appears a criminal court has been ‘unduly lenient’ in sentencing.

These are all important – crucial -tasks and so it follows that these roles must be taken seriously.

The Attorney-General is, however, also a politician – usually a member of parliament but sometimes a peer – and one who attends the cabinet.

It is a job therefore where the holder has to wear two hats – or horsehair wigs.

And it is not an easy task even for senior politicians and experienced lawyers.

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The current Attorney-General is neither a senior politician nor an experienced lawyer.

This, of course, is not their fault – although some in this position if they were offered the office would not take it.

The current holder of the office, however, is going out of their way to politicise and thereby to discredit the legal side of the office.

This blog has previously set out how the current Attorney-General should have resigned when they unapologetically tweeted in respect of a case of a political ally who was then subject to a live police investigation.

That really was not what the superintendent of the Crown Prosecution Service should be doing.

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There is now a further example of how the current Attorney-General is undermining their office.

Here there are three texts that are of interest.

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First, here is a Daily Express article from 7th November 2020: Attorney General to appear at Andrew Harper’s killers appeal hearing next week.

In the body of that article, under the byline of a political editor, was the following:

‘A friend of Ms Braverman’s told the Sunday Express:

‘“She was met with strong opposition from civil servants to pursue this case but she held firm and has done the right thing.

‘“She made it clear she wants to be there to underline how important this issue is to the ‘government and how seriously it takes this case.

“If the judges uphold the original sentences then she will have still done the right thing and it will be another example of wet, liberal judges being soft on criminals.”’

As is widely known, ‘friend’ is a code in political journalism for either the politician themselves or someone speaking on their behalf, such as a special adviser.

As far as I am aware, this quote has not been disavowed by the Attorney-General.

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Second, here is a speech on sentencing by the Lord Chief Justice made on 9th December 2020.

Here are two paragraphs from this informative and accessible speech (asterisk and emphasis added):

‘Were the mythical alien to arrive on earth and, I grant you yet more improbably, take an interest in sentencing in England and Wales by reading the newspapers and dipping into the more noisy parts of on-line media, it would soon gain the impression that sentencing had got softer in recent years. It would read about “wet, liberal judges being soft on criminals” (*) and wonder why criminals convicted of serious offences were getting more lenient sentences than they used to. Then our alien visitor might seek some other sources of information, and if possessed of a brow it might become furrowed.

‘There is a difficulty with this narrative. It is a myth.’

The Lord Chief Justice then proceeds in his speech to demonstrate how sentencing has certainly not got softer.

But who was the judge quoting about “wet, liberal judges being soft on criminals” ?

The quotation is footnoted (where I have inserted the asterisk), and the footnote reads:

‘Sunday Express 8 November 2020, quoting a source.’

The Lord Chief Justice is here publicly dismissing – perhaps even deriding – the ‘friend’ of the Attorney-General who in turn is describing the Attorney-General’s motivation for intervening in a criminal sentencing case.

For the head of the judiciary to be doing this openly to the government’s chief legal adviser and holder of the ancient office of Attorney-General is an extraordinary public intervention.

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And now we turn to the Court of Appeal judgment in respect of the sentencing of those who killed the police constable Andrew Harper.

The facts of the case are horrific.

Three were convicted of manslaughter, though a jury acquitted them of murder.

And so the three were sentences in accordance with the guidelines for manslaughter.

The Attorney-General, as the Daily Express article describes, exercised one of their powers and referred the sentences to the court of appeal on the basis of the sentences being ‘unduly lenient’.

The Attorney-General then – oddly for a barrister with no substantial criminal law background – appeared personally at the hearing.

There are three paragraphs of the judgment of interest in respect of the contribution and role of the Attorney-General.

Paragraph 57:

‘In her initial remarks, the Attorney General rehearsed some of the facts and said that the sentences have caused widespread public concern. She outlined four points, about which Mr Little QC then made submissions.’

Here the court are not even deigning to describe the Attorney-General’s contribution as submissions – a ‘submission’ is something one submits to the court for consideration – but merely as remarks.

(The Supreme Court adopted a similar remarks/submission distinction when a former Attorney-General appeared (out of his depth) at the first Miller case: ‘Following opening remarks made by HM Attorney General, Mr Eadie QC in his submissions on behalf of the Secretary of State, did not challenge much if any of the factual basis of these assertions…’ – paragraph 57 here.)

We now turn to the submission that were made, if not personally by the Attorney-General, but by another barrister on their behalf.

Paragraph 83 (emphasis added):

As to the length of the custodial terms, we note a striking feature of the submissions. When applications are made by the Attorney General for leave to refer to this court sentences which are said to be unduly lenient, it is frequently on the basis that the judge fell into error by failing to follow a relevant guideline. In this case, however, the argument advanced by the Attorney is that the sentence of Long, and therefore the sentences on Bowers and Cole, were unduly lenient because the judge erred in failing to depart from the relevant guideline.

Just as political journalists have their codes, so too do judges.

And to describe as position as ‘striking’ is to say that it is barking – and the rest of the paragraph explains why.

In essence: unduly lenient sentences are those which depart from the guidelines and not those made in accordance with them.

This is then followed by paragraph 84 (again emphasis added):

‘That is, to say the least, an unusual submission. It involves the proposition that in the circumstances of this case, a sentence within the guideline offence range was not within the range properly open to the judge, who was instead required to pass a sentence outside that range. We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were not addressed. Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so.’

Here ‘unusual’ means, in effect, beyond barking – and again the rest of the paragraph sets out why.

These are obvious points and would have been plain to government lawyers.

But as ‘friend’ of the Attorney General said, ‘[s]he was met with strong opposition from civil servants to pursue this case’.

And paragraphs 83 and 84 set out why.

*

Taking these three texts together we can see that the judiciary are alert to the motivations of the Attorney-General and are resistant to the attempts to politicise the office, and that the judiciary will be unafraid to reject ‘striking’ and ‘unusual’ submissions made on behalf of the Attorney-General.

The judges are not stupid or unworldly – they know exactly the import of coded criticisms in public speeches and judgments.

The Attorney-General may be sending signals, but so are the judges.

*

But this Attorney-General will not care.

The political job is done – and one can imagine the claps and cheers of the ‘friend’ quoted in the Daily Express article. 

She took on the ‘wet, liberal judges being soft on criminals’.

But this political job has been done at a cost.

Although a politician, the Attorney-General is entrusted with highly important decisions in respect of not only referring ‘unduly lenient’ sentences, but also in respect of many other legal matters, from contempt of court to the operation of the crown prosecution service.

But the conduct of the current Attorney-General is such that their credibility as a decision-maker capable of making such decisions on the appropriate basis is open to doubt.

This quick win for a political ambitious Attorney General is at the cost of the standing of their office.

The Attorney-General is weaponising her legal responsibilities for political purposes.

This is a remarkable, striking and unusual predicament.

And given that the Attorney-General is not only doing this recklessly but with apparent enthusiasm means that there is no reason for anyone watching it happen in real time to be unduly lenient.

*****

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Section 007 – how the government authorises criminal activity by its agents, and a telling recent disclosure

16th December 2020

One theme in recent law and policy has been for the government of the United Kingdom to increasingly place itself and its agents above or beyond the law.

There is, of course, a certain hypocrisy in this given how loudly ministers shout about ‘Law and Order!’.

Sometimes this is done subtly, with limits on the scope judicial review, the law of human rights, and the entitlement to legal aid when one is challenging public bodies.

But sometimes it is done quite openly – indeed brazenly.

One example is the current attempt – which I explain in this video for the Financial Times – to make it effectively impossible to prosecute members of the armed forces for war crimes and torture.

 

Another attempt – though it has just been dropped – was to enable ministers to issue regulations that would break the Brexit withdrawal agreement.

And another attempt is the current Covert Human Intelligence Sources (Criminal Conduct) Bill before parliament.

The long title of the Bill expressly states that it is to:

‘Make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.’

The Bill provides for ‘criminal conduct authorisations’ which are defined as ‘authorisation[s] for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’

On the face of the Bill there are no exempt criminal offences – and so, in theory, they would include murder, war crimes and torture.

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At this point one can imagine senior security officials with kindly faces and reassuring manners telling us that, of course, no such offences would ever be committed.

But.

It is a matter of public record that the United Kingdom state was complicit in the murder of civil rights lawyer Patrick Finucane in 1989.

The United Kingdom state has also been complicit in the torture of civilians, in Northern Ireland, Kenya and Iraq.

The sheer volume of accumulated historical evidence is that, yes, we really should be worrying our little heads about what the United Kingdom state and its agents are capable of when they think it can get away with it.

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And there is now a more up-to-date reason to be concerned about the lack of effective controls and accountability.

Here the relevant provision is the wonderfully numbered section 007 of the Intelligence Services Act 1994.

(Ok, it is section 7 – but it amuses me.)

This provides for ministerial authorisations for people to break the law outside the British and Irish isles and then not have any criminal or civil liability for those acts in the United Kingdom.

It is a remarkable and little-known provision, and is worth a good look.

This is the so-called ‘licence to kill’.

And, of course, senior security officials with kindly faces and reassuring manners will tell us that the power would never be abused, and that those granting the authorisations will only do so on the basis of full information.

But as set out in yesterday’s Guardian, there has been a problem.

This was spotted by the fine organisation Reprieve, hidden away on page 59 of a dense 168 page report, in two paragraphs 9.39 and 9.40 (emphasis added):

‘9.39 We reviewed a section 7 submission relating to a high-risk SIS [Secret Intelligence Service] agent case overseas. SIS identified a risk that the agent may be involved in serious criminality overseas. SIS did not encourage, condone or approve any such criminality on the part of their agent. In their submission, SIS set out that they had secured the agent’s cooperation on terms of full transparency about the activities in which the agent was involved. It included some clear ‘red lines’, setting out conduct that was not authorised and would result in the termination of SIS’s relationship with the agent.

‘9.40 On renewal, six months after the original submission, SIS set out a number of indicators that the agent may have been involved in, or have contemplated, the serious criminality referenced above. We concluded that, on the basis of this new information, SIS’s ‘red lines’ had most likely been breached, but the renewal submission failed to make this clear. Whilst the submission referred to SIS’s ‘red lines’ provided information about criminality that may have occurred and noted an increased risk in the case, it did not make expressly clear that SIS’s ‘red lines’ had probably been crossed. We concluded that the renewal did not provide a comprehensive overview of available information which we believe would have provided the Secretary of State with a fuller and more balanced picture. SIS immediately responded to these concerns by updating the FCO.’

Or, as the Guardian rightly put it:

‘MI6 failed to make clear to the foreign secretary that a “high risk agent” operating overseas had probably engaged in “serious criminality” until it was pointed out by an independent regulator last year.’

*

This means that there is very recent evidence that the United Kingdom security services do not provide appropriate information to those making authorisations in respect of criminal activity.

If this is happening with section 7 authorisations for foreign law-breaking, there is no reason to believe this will not also happen under the current bill providing for authorisations for domestic law-breaking.

*

The United Kingdom government has recently put forward legislative proposals for limiting torture and war crimes prosecutions, authorising criminal conduct for agents of the security forces, and even for powers to break the Brexit withdrawal agreement.

There has never been a government that has put so much legislative effort into making it possible to break laws rather than into making laws.

***

Remembering David Cornwell – John le Carré – who would not be surprised at any of this.

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This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

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The myths of ‘arrogant judicial power’ and ‘human rights gone mad’ and the Dolan judgment

5th December 2020

A ‘myth’ is often a word we use to describe a thing we disagree with.

But sometimes the word has its uses.

Some things are believed in as true without evidence or despite the evidence.

Take the example the prevalence in modern politics of two views about the relationship between the courts and politics.

The first view is that there is an over-reaching judiciary: that judges are often deciding matters of policy and other political questions against the government and parliament.

The second view is that the law of human rights has ‘gone too far’ and beyond the limits of common sense.

And now take the Dolan case on the legality of the coronavirus lockdown regulations, which this blog considered yesterday.

This was a case where the government had, in effect, legislated by decree – without any prior parliamentary scrutiny and approval – so as to remove fundamental rights of movement, of assembly, of public worship, of being able to trade lawfully and so on.

These widest possible blanket prohibitions one could imagine, all done with no real consideration of the proportionality of each measure and with no accountability.

Law and policy as sledgehammer.

If there was ever a case where there should be anxious scrutiny of the use of delegated legislation this was it.

The courts would surely surely step in, where the legislature had been sidelined.

After all, we have an over-reaching judiciary and human rights law is powerful.

Of course not.

Both the court of appeal and the court of first instance could not have sided more with the executive if they had wanted to do so.

Each fundamental right was a mere tick box for the court to approve the interference by the state.

The reasons for this outcome are familiar to anyone with a detailed interest in public law.

Our courts are invariably deferent to the executive on matters of policy.

The few cases where the government is defeated often turn on their own extraordinary facts.

And human rights law in the United Kingdom is weak and usually impossible to rely on in any practical case.

Almost all the rights under the European Convention on Human Rights, for example, are ‘qualified rights’, which mean that it is not difficult for an executive to interfere with those rights when it says it is in the public interest to do so.

And so the most illiberal legal measures in peacetime could be imposed by the government without prior parliamentary scrutiny and approval, and the courts could not nod any harder at the government doing this.

(My own view, as I set out yesterday, is that even if the individual measures were warranted at a time of a public health emergency, the measures should have been done via Civil Contingencies Act, which provides for detailed legislative and judicial oversight, and not through the Public Health Act which meant no real legislative and judicial oversight at all.)

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There is a famous statement by a judge in a case during the second world war – a statement which every law student knows.

This is Lord Atkin in Liversidge v Anderson:

‘In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.’

But what most law students also forget is that this was said in a dissenting judgment: Lord Atkin was in a minority.

The depressing fact is that in England there is often almost little to nothing the courts can or will do against executive action, even when there is no prior parliamentary approval for the measures imposed.

Courts and judges are far better at finding reasons not to intervene than to do so.

If the Human Rights Act, for example, had a quarter of the power which its populist detractors accuse it of having, the Dolan case would not have been so one-sided.

Yes: it was a public health case, but that should make a court more anxious in its scrutiny of emergency legislation, not less.

To paraphrase Lord Atkin: amid a pandemic, the laws should not be silent.

Those who promote the views that there is an over-reaching judiciary and that the law of human rights has ‘gone too far’ do not care about this, of course.

For these cherished views are their myths, and so they will stick with them.

But these views are, in fact, fantasies.

We do not have an over-reaching judiciary and the law of human rights has not ‘gone too far’ – and the Dolan case shows this.

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Freedoms vs Permissions – a liberal look at the Court of Appeal judgment on the coronavirus regulations

4th December 2020

A few days ago the Court of Appeal handed down its judgment in the Dolan case.

This was an application for judicial review of the regulations restricting freedom of movement and other fundamental rights which were introduced in England earlier this year at the beginning of the pandemic.

The challenge was ultimately not successful, as the leading legal blogger Matthew Scott explains in this thread.

There are a couple of things in the judgment that are interesting from a liberal perspective.

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First, it was the approach of the court to the exercise of a freedom.

The classic model of freedom in a common law jurisdiction (such as England) is, of course, that one is free to do what one wishes – unless there is a specific prohibition.

This is the sort of liberty emphasised by those who trumpet freedom under the common law.

The court, however, seemed quite relaxed at this position being inverted under the regulations – that the starting point is that everyone is prohibited from doing what they want in respect of freedom of movement and assembly, unless there was a permission.

For the court there was nothing wrong with a general bans as long as there were exceptions where a person can satisfy the police and the courts that you had a ‘reasonable excuse’.

Here is the court’s reasoning on freedom of movement.

And then on freedom of assembly.

To make this observation is not necessarily to criticise the position of the court but instead to draw attention at how easily the court accepted the reversal of the classic model of freedom in the common law system.

The phrase ‘reasonable excuse’ has a nice nod-along quality that will make many people think ‘what could possibly be wrong with that?’.

Nonetheless it hands the decision on whether what you are doing is permissible to an official (or the court), and it will be they and not the individual who is the arbitrator of whether an excuse is reasonable or not.

And to take the position to an extreme: imagine a system where everything was prohibited unless an official (or the court) was satisfied you had a reasonable excuse.

That a person was never free to do anything, only to have the reasonable permissions of the authority.

What could possibly be wrong with that?

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In contrast with the ease with which the court accepted restrictions on the autonomy of the individual, the judges saw no need to exercise judicial control on the government’s own freedom of choice.

Back in March 2020 the government had a choice on how to regulate so as to restrict the fundamental freedoms of individuals.

On one hand, it could use the Civil Contingencies Act 2004 – a dedicated statute for dealing with emergencies with an exacting scheme providing for legislative and judicial supervision.

Or it could blow off the dust of the Public Health Act 1984, where it could impose wide prohibitions without real legislative control, where criminal sanctions and restrictions can be casually made and revoked without there being any prior votes in parliament and only the academic prospect of judicial review.

The government, of course, chose the latter.

And the court of appeal, that held that individuals should be banned for things unless they have reasonable excuses, afforded the government a complete free choice of which statute to use.

At paragraph 77 of the judgment:

“[The applicant] pointed to various differences in the procedure and timetable for the laying of regulations under the two different Acts: see, for example, section 27 of the 2004 Act, which deals with Parliamentary scrutiny of emergency regulations made under that Act. We do not consider that this detracts from the fundamental point that the Secretary of State may well have had a choice of options and could have acted under the 2004 Act. It does not follow that he was required to do so; nor that he is somehow prevented from using the powers which Parliament has conferred upon him in the 1984 Act, as amended.”

The government thereby gets the benefit of a ‘fundamental’ right to choose, even if citizens do not.

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None of the above means that the individuals should not comply with the coronavirus regulations – and it is emphatically correct that in a public health emergency of a pandemic, there should be be restrictions on the rights of individuals.

This post draws attention to how the court of appeal has gone about dealing with this challenge to the regulations.

Instead of anxious scrutiny of whether the broad prohibitions went further than necessary, the court of appeal seemed too ready to accept that the government can side-step at will a scheme designed to ensure proper legislative and judicial scrutiny of highly restrictive legislation.

A better decision of the court of appeal would have been to say that there was a presumption that in an emergency the government uses the legislation that provides more legislative and judicial scrutiny – unless it has (ahem) a reasonable excuse not to do so.

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Why today’s deportations to Jamaica are nothing for the Home Secretary to be boastful about

2nd December 2020

There are many illiberal and misconceived things going on that a blog like this, which offers commentary and context on just one law and policy thing a day, cannot keep up.

But one especially brutal and unfortunate thing is to take place later today.

There is set to be a deportation flight from England to Jamaica, which will take place notwithstanding the ongoing covid pandemic and in the run-up to Christmas.

Those being deported are people with criminal convictions who have served their sentences but, because they are (in some cases only technically) foreign nationals, they are now to suffer this further sanction of the state.

The deportees include those with families and children in the United Kingdom – and so the Home Office are depriving children of parents and partners and other dependents of potential breadwinners.

The deportees include those who came to the United Kingdom as children and have no real connection with Jamaica.

One aspect of this deportation that is especially worrying and distasteful is the sheer glee that the current Home Secretary and it seems Home Office officials are taking in this exercise of sheer state power.

‘We make no apology…’ are the first four boastful words of the Home Office statement.

The Home Secretary herself is using this to make party political points.

 

There is no sense of ‘more in sorrow than…’ and that it is unfortunate but somehow must be done.

Instead, Home Office politicians and officials seem to be revelling in it, with the attitude of ‘look what we can do’.

They also appear to want as many legal interventions as possible, so that they can have the added bonus of pointing to meddlesome ‘activist’ lawyers.

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The impression the affair gives is not one of reluctant necessity but that this is a propaganda stunt – and one which comprises detaining people, marching them in handcuffs, using coercive power to send them to countries that are not their homes, and inflicting damage to innocent children and families.

Again, during an emergency pandemic and in the run-up to Christmas.

*

The justification that the Home Office politicians and officials will give to themselves and others for this is that the criminals brought it upon themselves, and so the politicians and officials are absolved from any blame.

Yet this deflection is not convincing.

First, it is not justice to inflict double or disproportionate penalties – all because a crime has been committed, that does not mean ‘anything goes’ for the state in retaliation.

Second, this is an exercise of discretion by the Home Office – a deliberate choice, not an automatic process.

And so the Home Office is choosing to prioritise deportations above the very real effect of depriving families and partners – and remember, the families, dependents and partners have not committed any crime but they will suffer and be damaged anyway.

Third, it is notable that there seems to be no trumpeting by the home office of deportations to other commonwealth countries such as Canada, New Zealand and Australia – and this is perhaps for the obvious reason.

Fourth, the Home Office policy of the hostile environment and its treatment of Windrush families demonstrates that it is not well placed to make sensible decisions in respect of families from the Caribbean – and it would be wise for the Home Office to step back from such coercive moves as this deportation until it gets a wider policy grip.

And fifth, to the extent that those convicts who have been released from sentences remain ‘dangerous’ then the question must be why they have been released from prison.

*

This deportation is an ugly spectacle, and it is one which nobody involved can take pride.

And the fact that there will be those who nod and clap and cheer at this brutal exercise of sheer state power tells us more about our society than anything about the families that are about to be forcibly broken up, so that the Home Secretary can tweet her party political ‘owns’.

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Pardons should be how mercy complements justice – but what happens when pardons undermine justice?

26th November 2020

There is a distinction – no doubt one of the oldest distinctions in the history of human societies – between justice and mercy.

The model is as follows:

– justice is (in part) about the appropriate application of general rules to particular cases;

– the application of justice in a particular case may result in an onerous sanction against an individual;

– there may be special circumstances where this onerous sanction should not be imposed on that. individual, even though this is what justice provides;

– and so an exercise of mercy will release that person from that sanction.

As such, mercy is a complement to justice, not a replacement for it.

A person may have done wrong, but they need not suffer for it.

The sin is still hated, but there is love for the sinner.

This, at least, is the model.

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The usual and best known means of exercising mercy is by way of a pardon.

The sovereign – or other head of the executive – makes a decree that in a particular case an individual should not suffer a punishment for their crime.

In the United Kingdom, the power to grant pardons is part of the royal prerogative (and is exercised rarely), and in the United States there is the constitutional power of the President to pardon in respect of federal crimes (and is exercised quite a lot).

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Pardons are curious things.

Let’s look at the word: to pardon someone is to forgive them and to receive a pardon means that you have been forgiven – and so to say ‘I beg your pardon’ is literally to ask for forgiveness.

(Only by usage and habit has it come to mean ‘say again’ – which is in effect an abbreviation of ‘I beg your pardon but can you please repeat that’.)

When applied to legal matters, a pardon is about forgiveness.

It is (or should be) about the sentence, not the offence.

As such it is (or should be) about mercy rather than justice.

And so here we come to a conceptual issue about pardons.

A pardon presupposes guilt.

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A pardon means (or should mean) that it is accepted or admitted that an offence has been committed – else there would not be a thing to forgive.

A pardon does not (or should not) expunge the offence.

This is why it possible for a convict to refuse a pardon (or to refuse to plead the pardon as a bar to any proceedings), if it is not accepted an offence has actually been committed.

To accept a pardon is to mean (or should mean) that the person accepts or admits that they committed an offence and that they accept official forgiveness. 

And so to offer a pardon is to, implicitly, accept that the conviction is sound but that the punishment should be forgiven. 

So should there be pardons for convictions when the law itself is wrong or unjust?

Would it not be conceptually neater for the convictions themselves to be expunged, rather than merely having the sentences forgiven?

(In 2013, I wrote about this at the New Statesman in respect of the posthumous pardon for Alan Turing.)

And there is also, of course, a more obvious problem with posthumous pardons: they are practically meaningless, as a dead person cannot be relieved of the sanction.

Posthumous pardons are mere gestures with no legal or practical effect, other than to make people still alive feel better.

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Pardons are topical because of the pardon granted by President Trump to Michael Flynn (the text of which can be read here).

But only those with short political memories will consider it exceptional that a President of the United States uses the power of pardon in a wrongful or controversial way.

Wrongful, controversial presidential pardons did not start with President Trump.

For example, on his last day of office in 2001, President Clinton granted 140 pardons, some of which seemed rather questionable.

And in 1974 President Ford pardoned President Nixon even before any criminal proceedings had been commenced, and without Nixon admitting any criminal offence.

The Nixon pardon was an odd thing from a legal perspective – you can read the text here.

The key text was that the pardon was ‘for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974’.

The ‘may have committed’ is remarkable: it in effect created retrospective immunity.

Nixon was, in effect, being given immunity from any prosecution for any federal offence for his presidency.

No specific offences were mentioned.

No guilt was admitted.

The Nixon pardon is an extraordinary legal document.

And it can barely be called a ‘pardon’ in any meaningful way.

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The classic model of pardons as only going to sentence, and not to criminal culpability is therefore an ideal which has sometimes not been matched in practice.

And so it is not unexpected that Trump seems to see pardons as not about forgiveness of offences but as, in effect, grants of criminal immunity.

Trump seems to want to use pardons as devices to place specific people above or beyond the law.

There is even the prospect that he will seek to (purport to) grant himself a pardon and in doing so, as with Nixon, he may not admit any criminal guilt.

(But there are limits to pardons: in the United States, a presidential pardon only protects against federal prosecutions, and so any State prosecutions would be unaffected.)

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The issue of the use and abuse of pardons is no doubt as old as the distinction between justice and mercy itself.

One problem will always be that there is a point where showing mercy to any significant degree defeats the purpose of law itself.

As such mercy ceases to complement justice but subverts justice instead.

Mercy will then not alleviate the excesses of the rule of law, but instead may undermine the rule of law.

And we may about to see this in action with Trump in the United States.

What Trump now does with his power to pardon before 20 January 2020 may exceed in scale what was done with the Clinton last-day pardons, and surpass in jurisdictional reach what was done with the pardon for Nixon.

Trump may be about to use the power of mercy to assault justice itself.

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The TRUTH about Article 61 of Magna Carta

Yesterday someone posted on Twitter the following (now deleted) tweet.

Another (also now deleted) tweet linked to a video of what seemed to have been an exchange between a person called Brad and the police, in which Brad sought to rely on his rights under Magna Carta.

The video is still available on Facebook and is worth watching in full.

 

A quick internet search also reveals sites like this one purporting to set out your rights under Article 61 of Magna Carta.

And on Twitter there are still tweets such as this.

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Is this true?

Is there a right of lawful rebellion under Article 61 of Magna Carta?

Does displaying Article 61 of Magna Carta in a shop window mean you cannot be fined or closed?

Let us find out.

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Magna Carta is Latin for ‘the Great Charter’, a legal document written in Latin that first came into existence in 1215.

(By convention, and because it was originally in Latin, the ‘the’ is often missed out in the title by historians and lawyers when discussing Magna Carta, which I find amusing but is really not at all significant.)

An English translation of this Magna Carta is at the British Library website.

You will see this original Magna Carta is divided into numbered sections (known to historians and lawyers as chapters, not ‘Articles’).

At Chapter 61 is the following:

SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.

If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.

Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.

If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.

In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.

The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.

We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.

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You will see that the phrase ‘lawful rebellion’ does not appear in Chapter 61, and neither is there anything which provides that if Magna Carta is displayed it renders a person or business immune from closure or fines.

The provisions is instead what is called a ‘security’ provision, setting out how the rights under Magna Carta could be practically secured and enforced.

If you read the provision you will see that the rights and powers of security are given to twenty-five barons (elected by other barons).

There is nothing in the provision to support the claims made on its behalf by the social media posts set out above.

If you do not believe this, read the provision for yourself.

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But even if the original text of chapter 61 of Magna Carta had provided for lawful rebellion, or that the mere display of Magna Carta in a shop window would be enough to ward off law enforcement officials, the provision was removed within a year, when Magna Carta was reissued in 1216.

(It was reissued and amended many times.)

There is no sensible explanation for why a provision that was only in force 1215 to 1216 (and then only granted a power to 25 barons) would have the effect in 2020 of preventing a shop being closed under public health regulations if Magna Carta was placed in a shop window.

And that is the truth about Article 61 of Magna Carta.

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There is, however, a serious point to be made about the various claims made about ancient legal documents, such as Magna Carta or the Bill of Rights.

There is not a strong tradition of ‘constitutionalism’ in England, and in the United Kingdom we do not have a portable and accessible document we can point and say ‘this is our constitution’.

And in the absence of a widely shared knowledge of the constitution, claims about Magna Carta, the rights of freemen of the land, and so on, become popular but unchecked.

As a matter of law and history, Magna Carta is now little more than a legal ornament rather than a living instrument, and it is rarely if ever successfully relied on in practice.

It is a legal text which politicians and others can praise safely, as it provides no real protections.

(In contrast, legal texts that do actually provide practical rights such as the Human Rights Act 1998 are  often attacked by those same politicians.)

Some of Magna Carta is still in force, in its 1297 reissue, and you can see these provisions on the official legislation website.

You can also read my piece from the 2015 anniversary, and this is an informative and insightful speech on Magna Carta from the medieval historian Jonathan Sumption.

And you can watch this, from another Brummie commentator on Magna Carta, Anthony Aloysius Hancock.

 

 

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The road from Barnard Castle – government and the problem of illegality

20th September 2020

In any human community larger than about 120 to 150 – Dunbar’s number – it becomes increasingly difficult to govern on the basis of sheer personality alone.

And so instead of face-to-face encounters of dominance and appeasement you have rules and commands: things that bind you – oral or in writing – because of the legitimate nature of the rule or command.

In modern societies these rules and commands are divided between the normative and the positive, and the usual word for the latter is ‘law’.

As I set out briefly over at Prospect – in a modern society a government is creature of law, and so without law it is ultimately nothing.

Even a gang of thugs with official titles will find it hard to govern a medium to large society for long on the sole basis of a series of in-your-face confrontations.

But in addition to this basic requirement for government to take law seriously for government to exist at all, there is a key additional benefit of a government promoting compliance with the law.

If the government complies with the law then it is more credible for the government to insist on the governed to comply with the law as well.

This is, of course, an argument based on convenience.

But when a government itself does not itself appear to take law seriously it undermines the legitimacy of law.

And this is the problem the government of the United Kingdom now finds itself.

The problem of legality and illegality.

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There are two events which illustrate this problem.

First there was the now notorious trip of a senior government adviser to and from Barnard Castle during lockdown for which he could provide no plausible good reason.

This appeared to be a casual breach of the applicable law, and one that he seemed to shrug off as unimportant because, by implication, laws were for other people and not for him.

In fact, this impression is to an extent unfair.

The police did investigate and they decided that, in the circumstances, there would be no further action and, even if he had been stopped on the day, he would have only got words of advice.

And so that was not law and due process averted but followed; it is just that law and due process did not get very far.

But what lingered was not the decision by the police (which was for the adviser a fortunate but not inevitable outcome) but the nonchalant indifference as to to whether the law was broken before the breach was was revealed.

And what many will remember is that neither the adviser nor the prime minister did take responsibility for the breach: nobody was sacked, and nobody resigned.

The only apology given was the adviser turning up late to the press conference to justify his actions.

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Now, months after the trip to and from Barnard Castle, we have the second event illustrating the government’s problem with legality and illegality.

The government has proposed that legislation be passed that would enable it to deliberately break the law.

(See my posts here, here and here.)

This proposal has been supported by the House of Commons in principle at ‘second reading’.

It may well be that this proposal is soon dropped or defeated during its parliamentary passage.

But the damage has already been done.

The government itself is now on its very own journey to and from Barnard Castle.

A grand ‘away day’ from the rule of law.

Some supporters of the government have attempted to justify this proposal, but even few of them are convinced.

And the underlying policy issue – state aid on the island of Ireland after the transition agreement ends – is not connected to the proposal in any logical way.

There is no good reason – perhaps no reason at all – for the government’s proposed illegality.

And so the impression is again given that laws are for other people, and not the government.

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This weekend’s press has told us that the government is now considering ‘tough’ penalties for those who break self-isolation during the ongoing pandemic.

The figure mentioned for the fine is £10,000.

On what basis can the government now insist that others comply with the law?

Of course, there is the resort to coercion: the use of police and the courts.

A government should not, however, have to rely on brute force (or the threat of brute force) to get people to comply with a law, especially in the context of public health and public safety.

The government may have the brute power to seek to make the governed comply with the law but not the legitimacy to insist.

That is quite a loss for any government.

And that is what was thrown out of the car window on that journey back from Barnard Castle.

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