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  • How the Trump administration’s “shock and awe” approach has resulted in its litigation being shockingly awful 22nd April 2025
  • How the United States constitutional crisis is intensifying 17th April 2025
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  • The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in 30th November 2023
  • On yesterday’s Supreme Court judgment on the Rwanda policy 16th November 2023
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  • Witch-hunt (noun) 2nd August 2023
  • Sir Keir Starmer and the Litigation Turn of Mind 31st July 2023

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Category: Home Office

Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness

21st August 2024
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*

One striking – and troubling – aspect of the legal case of Shamima Begum is the artificiality of the United Kingdom state maintaining that she ever had the real prospect of going to Bangladesh.

The removal of her British citizenship was predicated on her being able to take the citizenship of Bangladesh, a country which she had never visited and to which she had no meaningful connection.

By way of background, this is from paragraph 1 of the relevant Court of Appeal decision:

“On 19 February 2019 Shamima Begum, then aged 19, was deprived of her British citizenship by a decision under s 40(2) of the British Nationality Act 1981 (“BNA 1981”), made personally by the then Secretary of State for the Home Department, the Rt Hon. Sajid Javid MP. Her appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 22 February 2023.”

Adding:

“Ms Begum was born in the United Kingdom on 25 August 1999. She was brought up in Bethnal Green in the London Borough of Tower Hamlets. Her parents are of Bangladeshi origin and, through them, Ms Begum had Bangladeshi citizenship until her 21st birthday.”

The Court of Appeal then noted:

“SIAC observed that Ms Begum’s case under this ground was straightforward: even if the deprivation decision did not render her technically stateless, it had that practical effect. One way or another, she could not go to Bangladesh, and that meant there was nowhere for her to go […].”

*

We are told by the Court of Appeal that material before the Home Secretary included a reference to this effective statelessness:

“On 18 February 2019 a ministerial submission with accompanying documents was received by the Secretary of State. The submission recommended that the appellant be deprived of her British citizenship on the basis that it would be conducive to the public good due to the threat that she was assessed to pose to UK national security. […]

“One of the annexes to the submission, dealing with the potential risks to Ms Begum of mistreatment contrary to Articles 2 and 3 of the ECHR, expressed the view that although there was a risk that individuals in Bangladesh could be subject to conditions which would not comply with the ECHR, the Secretary of State may consider that there was no real risk of her returning to Bangladesh. Neither the submission nor the annexes to it expressly considered the issue which forms the basis of Ms Begum’s third ground of appeal before this court, that if deprived of British citizenship she would be “de facto stateless”.

“The Secretary of State agreed with the recommendations in the submission on 19 February 2019.”

*

This was an eye-catching push-pull you point: on one hand, the Home Secretary was legally safe in taking away her British citizenship as Begum would in theory be able to go to Bangladesh but, on the other hand, he was also legally safe because in practice she could not do so.

*

One of the grounds of appeal of Begum before the Court of Appeal was:

“De facto statelessness: The deprivation decision was unlawful on account of a failure by the Secretary of State to have regard to whether the decision to deprive would render Ms Begum de facto stateless on account of her de jure Bangladeshi citizenship being of no practical value to her. SIAC correctly concluded that this was a mandatory relevant consideration to which the Secretary of State was required to have regard. However, SIAC erred in finding that the matter had been properly considered.”

*

In one paragraph, the Court of Appeal rejected this ground of appeal:

“It is not necessary to decide what might be difficult questions about whether the concept of “de facto statelessness” is established in international law. The point in layperson’s language is that Ms Begum had nowhere else to go. Until her 21st birthday in 2021 she had Bangladeshi citizenship by descent but there was no realistic possibility of her being able or permitted to enter that country. The appendix to the ministerial submission made this clear, though in the context of whether she was at risk of treatment contrary to ECHR Article 2 or Article 3. As SIAC found at [302]-[305], this was sufficient to bring the issue to the attention of the Secretary of State, if he did not know it already. Despite knowing that she had nowhere else to go, in all practicality, the Secretary of State nonetheless decided that to deprive her of her British citizenship on grounds that to do so was conducive to the public good and in the interests of national security. He took that matter into account. The decision cannot be impugned on the basis that he did not do so. On the basis of the open arguments applied to the evidence that we have seen in open and closed, Ground 3 fails.”

*

In essence: it did not legally matter that the deprivation of her citizenship in fact (de facto) rendered her stateless, as long as (a) in legal theory (de jure) she was not stateless and (b) the minister considered this fact, and made the deprivation order anyway.

*

Begum then applied to the Supreme Court.

Some thought this would be a good case for the Supreme Court to engage with this extraordinary power of the UK state to take away a person’s citizenship – in some ways a person’s most basic legal right – in circumstances where in reality they would be rendered stateless, but as a legal fiction they would not be.

It could have been a Supreme Court case for the ages.

But, no.

In their short published reasons, they decided not to hear the appeal on his and her other grounds. On de facto statelessness, they provided these three paragraphs (emphasis added):

“The fourth ground of appeal concerns the fact that the deprivation decision resulted in the Appellant’s becoming de facto stateless, as there was no reasonable prospect of her being admitted into Bangladesh, of which she was a citizen. In this regard, it is argued that the Secretary of State failed to have regard to all material considerations.

“Both courts below found on the evidence that the Secretary of State had taken into account the fact that the deprivation decision would render the Appellant de facto stateless. There is nothing to indicate that that conclusion is vitiated by any error of law. The Appellant’s submission that the Court of Appeal failed to distinguish between the fact of de facto statelessness and the significance of that fact (the latter, rather than the former, being argued to be the mandatory relevant consideration) does not appear to the panel to raise an arguable point of law.

“The panel notes that the Appellant does not challenge the existing law that the prohibition, under section 40(4) of the British Nationality Act 1981, on making a deprivation decision which would render a person stateless, refers to de jure rather than de facto statelessness. Nor is it argued that the Secretary of State’s decision to make the deprivation decision, notwithstanding that its effect would be to render the Appellant de facto stateless, was unlawful because it was perverse.”

*

Begum may apply now to the European Court of Human Rights – a possibility which the Supreme Court alludes to elsewhere in its decision: “Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court.”

*

But overall, this does not seem a satisfactory position.

There are many people in the United Kingdom who either through their parents or otherwise could, in theory, become a citizen of another country – even though they have no real connection with such a country.

The power used in the Begum case cried out for judicial consideration at the very highest level in our judicial system, but the Supreme Court appears to have shrugged – and, at best, passed the matter to Strasbourg.

Of course, we do not have all the facts about Begum – there may be evidence not in the public domain which justifies her exclusion; we do not know.

But the general principle about removing British citizenship requires anxious scrutiny by our highest court.

In 2020-21 the Supreme Court decided various technical points about Begum’s case.

It is a shame that the Supreme Court has now decided not to hear the substantive issue in her case.

***

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

 

Posted on 21st August 202421st August 2024Categories Citizenship and Nationality, Courts and the administration of justice, Home Office, Human Rights and Civil Liberties, Justice, UK Supreme Court, United Kingdom Law and Policy20 Comments on Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness

On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

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

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

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

*

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

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

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

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

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

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

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

*

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

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

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

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

*

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

****

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 16th November 2023Categories Constitutional Law, Constitutionalism, Courts and Politics, Courts and the administration of justice, Home Office, Human Rights and Civil Liberties, International Agreements, International law, Rwanda policy, UK Supreme Court, United Kingdom Law and Policy44 Comments on On yesterday’s Supreme Court judgment on the Rwanda policy

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

9th November 2023

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

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

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

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

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

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

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

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

****

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

 

Posted on 9th November 2023Categories Home Office, Human Rights and Civil Liberties, Island of Ireland, United Kingdom Law and Policy32 Comments on The extraordinary newspaper column of the Home Secretary – and its implications

Understanding the significance of today’s Court of Appeal decision on the Rwanda removals policy

29th June 2023

Today the Court of Appeal ruled that the United Kingdom government’s controversial Rwanda removals policy was unlawful.

The judgment is here and there is a court-prepared summary here.

By saying the policy was itself unlawful, this means that each and every possible removal of any asylum seeker to Rwanda for their asylum application to be processed is currently unlawful. There are no current circumstances where a removal would be lawful.

The reason for the unlawfulness is that Rwanda is not a safe place for the processing of asylum claims:

This goes beyond the decision of the High Court that each particular removal happened to unlawful, on a case-by-case basis, because an appropriate process had not been followed. The High Court had said that the general policy was lawful, but each application of it so far had been unlawful.

The Court of Appeal now says that even the policy was unlawful. No removal, even with elaborate procedural compliance, would be allowed.

So both in practice and in the round the Rwanda removals policy has been held unlawful.

Opponents of the policy can celebrate – to an extent.

*

Here are some further thoughts about what this decision signifies and does not signify.

*

First, and from a practical perspective, the government’s far bigger problem was the initial High Court judgment. It does not really matter if a policy is (theoretically) lawful if the procedural protections required for each individual case are such that, in practice, removals are onerous and extraordinarily expensive.

I blogged about these practical problems when the High Court handed down its judgment:

Today’s ruling that the policy itself is unlawful makes no real difference to the government’s practical predicament with the policy in individual cases.

And the government appears not to have appealed the adverse parts of the High Court judgment.

The Home Secretary, and her media and political supporters, can pile into judges and lawyers because of today’s appeal judgment. But their more serious problems come from the last judgment, and not this one.

The Home Office is simply not capable or sufficiently resourced to remove many, if any, asylum seekers to Rwanda even if the policy was lawful.

*

Second, the Court of Appeal decision today is likely to be appealed to the Supreme Court.

And, from an initial skim read of the relevant parts of the judgment, one would not be surprised if the Supreme Court reverses this Court of of Appeal decision.

Today’s Court of Appeal decision is not unanimous – the Lord Chief Justice was in the minority on the key question of whether Rwanda was a safe country for processing asylum claims.

The Supreme Court is (currently) sceptical of “policy” type legal challenges, and is likely thereby to defer to the Home Secretary’s view that Rwanda was a safe country for processing asylum claims – a view also shared by the two judges at the High Court and the Lord Chief Justice.

If the Home Office appeals to the Supreme Court then one suspects it is likely to win.

(Though it must be tempting to the Home Secretary to now abandon this – flawed – policy, and blame the judges.)

*

Third, any appeal to the Supreme Court will take time. As it has taken until June 2023 for an appeal decision for a December 2022 High Court decision, it may be another six months before there is a Supreme Court hearing and decision.

And in that time, and unless a competent court decides otherwise, all removals will be unlawful as a matter of policy.

If the government wins at the Supreme Court then there would presumably be further delays while individual challenge-proof removal decisions are made.

In other words, the period for any actual removals before a general election next year will be short.

Even with a Supreme Court win, it will be that few if any asylum seekers are removed to Rwanda before a likely change of government.

(Though it cannot be readily assumed that an incoming government will change the policy.)

*

Fourth, it should not be overlooked by opponents of the Rwanda removals policy that the appeal lost today unanimously and comprehensively on every other ground:

These defeats are not any cause for opponents of the policy to celebrate.

*

Finally, there is a possibility of a work-around, which the government could adopt.

In the Abu Qatada case it was held by the courts that a deportation to Jordan for a trial was unlawful because of the use of evidence extracted by torture in the Jordanian legal system.

And so the United Kingdom government did a deal that the Jordanian legal system changed its ways so that the deportation could take place.

Abu Qatada was then, lawfully, deported.

(And then acquitted by the Jordanian court in the absence of such evidence.)

This deportation was presented by the United Kingdom government as a win against pesky human rights lawyers – when in fact the government had in reality complied with the judgment.

Similarly, the United Kingdom government may work with the Rwanda government to improve the asylum system, and correct the evidenced defects, so that concerns of the majority of the Court of Appeal are addressed.

No doubt the government would then similarly present any Rwanda removals on this basis as a win against pesky human rights lawyers – but again it would be the government complying with what the court would have approved.

*

The judgment released today is long – and nobody commenting on the judgment today – politician or pundit – can have read it and properly digested it.

This post is thereby based only on initial thoughts and impressions.

That said, there is reason today for opponents of the Rwanda removals policy to celebrate.

But perhaps not too much.

**

This has been cross-posted from The Empty City Substack.

***

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 29th June 202329th June 2023Categories Courts and Politics, Courts and the administration of justice, Home Office, Human Rights and Civil Liberties, Migration and immigration, Policy and Policy-Making, United Kingdom Law and Policy29 Comments on Understanding the significance of today’s Court of Appeal decision on the Rwanda removals policy

Telling the story of how the “serious disruption” public order statutory instrument was passed

14th June 2023

Here is a story about law-making told in different ways.

The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.

The public are sick of Just Stop Oil’s planned programme of deliberate disruptions to daily lives. I’ve just signed an SI to change the law, giving Police power to stop protests causing more than a “minor hindrance” to a journey. This comes into effect at midnight tonight. pic.twitter.com/Zt9V4T0nko

— Chris Philp MP (@CPhilpOfficial) June 14, 2023

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By way of background

A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.

Statutory instruments are, in effect, executive-made legislation.  They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.

Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.

*

The government’s version

The first way of telling the story is from the government’s perspective.

The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.

At the end of the debate there was a contested vote, which the government won:The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.

Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:

The vote (against the government) was as follows:

The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:

An unelected House of Lords can’t block an elected House of Commons.

If you don’t want Tory laws to go through Parliament elect a Labour government.

— Wes Streeting MP (@wesstreeting) June 13, 2023

And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.

Told this way, the story is about how laws can and are made by such a democratic legislative process

Nothing to see here.

But.

But but but.

*

The constitutionalist version

There is another way of telling this story.

This account starts with the Public Order Act 2023 when it was a bill before parliament.

At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.

The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.

As a House of Lords committee noted:

The Home Office could not answer these basic questions:For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.

What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.

Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.

Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.

Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.

Plenty to see here.

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The story may continue

Yet this is not how the story (told in either way) may end.

The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.

This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.

And that is what the group Liberty is doing, and its letter before claim is here.

In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.

Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.

*

The moral of the story?

The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.

A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.

This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.

There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.

But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.

And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.

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Posted on 14th June 2023Categories Constitutional Law, Constitutionalism, Courts and Politics, Home Office, Legislation and Law-Making, Parliament, Regulatory law, Transparency, United Kingdom Law and Policy, Whitehall15 Comments on Telling the story of how the “serious disruption” public order statutory instrument was passed

And if Braverman goes, then what?

22 May 2023

Another week, another senior cabinet minister facing demands to resign.

This time it is the Home Secretary Suella Braverman – and the key question is whether she misused her office and advisers in respect of dealing with what followed from a speeding offence.

And this means the key question is again not anything to do with policy.

Of course: this Home Secretary should not even be in office.

As this blog set out in plodding detail, her two accounts of that last incident did not add up.

In particular, the statement in her (last) resignation letter that “[a]s soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary” was simply not correct.

But it doesn’t matter; and it never now matters.

The detail of what happened last time is so much ancient history – even though it was only a few months ago.

The question of whether she stays on is one of pure politics – not law, not policy, not administration.

Does the Home Secretary have the political power to stay on?  Or does the Prime Minister have the political power to get rid of her?

One should not underestimate the Prime Minister in these situations: he deftly got rid of Dominic Raab by the expedient of delaying any decision to endorse him.

The Prime Minister did not become a head boy at a big school or a senior banker without knowing how to play certain games.

And so we may now also be seeing again the former Goldman Sachs banker “managing out” a troublesome junior colleague.

Who knows.

But perhaps those (of us) who would want to see Braverman no longer at the Home Office should be careful about what we wish for.

Her replacement might be an actually competent hardline Home Secretary.

Though, of course, it must also be said there are not that many potentially competent hardline ministers left for any department.

Cabinet ministers come and go, but the lack of any substantial policy and reform looks likely as if it will stay a while longer.

***

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Posted on 22nd May 2023Categories Accountability, Home Office, United Kingdom Law and Policy13 Comments on And if Braverman goes, then what?

Legislation as an annual or biennial virility event

8th March 2023

In times past, communities used to come together every year or so to assert and celebrate rebirth and virility.

Nowadays, our politicians do something similar – although instead of costumes and spectacles they pass legislation.

Consider these two lists.

First, here are the Acts of Parliament since 2000 which have migration/immigration/borders/nationality in their short title:

This list, of course, excludes statutory instruments and other legislation that may have amended the law on migration and related aspects.

But it is about an Act every other year.

And here is a second list, of primary legislation since 2000 with terrorism or “investigatory powers” in the title:

Again, an Act of Parliament on average every couple of years or so.

Amusingly, our legislature cannot make its mind up whether the statutes should be title “terrorism” or “anti-“ or “counter-terrorism”.

(Perhaps one reason we have so many is because they keep cancelling each other out.)

Taking the two lists together, this means that the Home Office has had since 2000 about an Act every year on immigration or national security, or both.

An annual (biennial) legislative event which shows the Home Office is doing something.

We are told this year, like before, that the migration-related Bill is needed to solve the perceived borders issue.

We are told that those against this latest Bill are against the national interest:

One suspects similar sentiments could have been expressed (and indeed were) about those who may have had reservations about each of the previous Bills on borders and/or national security since 2000.

And like an addict, the Home Office will say in 2024 and 2025 that just some more Bills will be needed to show how serious we are about borders and/or national security.

Perhaps one day the Home Office will think it has enough legislation in place on borders and/or national security.

But until that happy day, Home Office ministers will pass a new Act every year or so to show that they are virile and that they are doing things.

Then they will hope we will forget the alarmism so that they can do it all over again in the next year or two.

The legislation will accumulate on the statute book, with different variations of the same few words in the titles.

Until perhaps they are all one day consolidated in a Terrorism, Anti-Terrorism, Counter-Terrorism, Borders, Migration, Immigration and Nationality Act.

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Posted on 8th March 20238th March 2023Categories Home Office, Legislation and Law-Making19 Comments on Legislation as an annual or biennial virility event

New Essay at Substack: Perhaps the most significant UK constitutional case of the last fifty years

6th January 2023

Over at my new law and lore Substack, I have published an essay for paying subscribers on how the Malone case of 1979-1985 exposed the lie of our supposedly liberal constitution and changed the way we were governed.

The essay starts as follows:

Consider this simple, attractive proposition: in the United Kingdom, you are free to do as you will, unless there is a law against it.

What could be wrong with such a nice proposition: it is almost a perfect articulation of principled liberalism.

But.

This proposition can have a hidden and ugly implication.

For it also can mean that the State can do as it wishes, to you and other people, unless there is a law against it.

And the case which exposed this unpleasant truth – and helped put an end to it, so that the State was required to have a legal basis for interfering with our lives – is the 1979-85 case of Malone.

This is the story of that case, and of its effects.

You can read the rest of the essay with a paid subscription here.

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For those who subscribe and donate through either Patreon or PayPal, please leave a “PRIVATE” comment below confirming you want me to add your email address to the Substack system so you can have a one-year complementary subscription to the law and lore Substack.

It is important that nobody pays “twice” for my content.

Posted on 6th January 2023Categories Constitutional and Legal History, Constitutional Law, Courts and the administration of justice, Home Office, Human Rights and Civil Liberties, Liberalism and Illiberalism, Police and Policing, Transparency, United Kingdom Law and PolicyLeave a comment on New Essay at Substack: Perhaps the most significant UK constitutional case of the last fifty years

Prisons will not be reformed until and unless we rethink our views on punishment and retribution

2nd December 2022

Here is the introduction to a thing about prisons I wrote at the Financial Times in 2013:

We are all, of course, familiar with the notion of prisons – and many of us will have Very Strong Opinions about the lengths of custodial sentences:

“Six years! Eight years! Fifteen years! More, more!”

“Higher, higher, higher!”

*

But.

For the reasons set out in that Financial Times piece, prisons are a strange as well as counter-productive idea for dealing with most crimes.

Prisons, generally speaking, are an expensive way of making bad people worse.

But the notion of incarceration is so deeply embedded in our collective consciousness it takes real effort to dislodge it.

It was not always like this.

In some earlier times, prisons were where you kept those charged with a crime until their cases could be heard and any sentences – capital, corporal, transportation – could be imposed.

Imprisonment itself was thereby a means to an end, rather than the punishment for criminal activity.

(The position for civil matters was different, with the debtors’ prisons, asylums and workhouses, all keeping certain undesirables out of the way.)

Around 1800 imprisonment became the normal punishment itself for crime – though for many onlookers the loss of liberty was not enough: prisons also had to be as miserable if not brutal as possible.

*

And little, if any, thought is ever given to the (innocent) families and dependents of those incarcerated.

If they are thought about at all, it is with a shrug and a vague idea that it is the criminals who are to be blamed and/or that their (innocent) families and dependents are tainted by association.

And so that the innocent suffer becomes an output of the criminal justice system, as well as the protection of the innocent being the system’s supposed purpose.

The state has to destroy innocent lives, so as to protect them.

*

There are at least two problems for any reform of prisons.

The first is that imprisonment is central to how society thinks about the punishment of crime.

A convicted person receiving a range of sanctions will still be described “as walking free from court” by outraged newspapers to their outraged readers.

The second is a consensus of what should replace imprisonment, especially given the popular view that retribution is the central purpose of punishment.

Of course, those who pose a danger to others or commit murders and other serious offences against the person should be locked away – and, unlike many liberals, I even support whole-life tariffs in exceptional circumstances.

But until and unless we rethink our views about punishment and retribution, the current expensive and damaging system will continue, for want of any alternative.

I was once asked what current day practice would be looked on in the future as akin to how we now see those who facilitated slavery.

My answer, more with hope than expectation, was: incarceration being considered the norm for punishments, with any alternative having to be justified.

Anyway, this post was triggered by reading this piece in the Guardian.

Let me know below what you think – about the points I set out above and the Guardian article, and what you think about prisons and imprisonment as punishment generally.

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Posted on 2nd December 2022Categories Courts and the administration of justice, Criminal Law, Home Office, Punishments and Prisons, United Kingdom Law and Policy55 Comments on Prisons will not be reformed until and unless we rethink our views on punishment and retribution

What does it mean to “take (back) control” of a border?

14th November 2022

Brexit, we are told, was about “taking back control” – of our borders, our money, and our laws.

Yet, if you read the news, it would seem the United Kingdom is less in control of its borders than it was before we departed the European Union.

It would seem that simply declaring that we were “taking back control” was not enough for us to, well, take control.

A less-than-a-moment’s thought should explain why.

It is difficult, if not almost impossible, to have absolute control of a border from one side alone, if a significant amount of people want to cross that border.

In extreme situations, of course, resorting to coercion and lethal force can give the impression of control, at least in the immediate term.

But for there to be effective and sustainable control of a border usually requires those on both sides to cooperate.

As such, the simplistic unilateralism of “taking back control” will not work in practice.

And it is thereby not surprising that the current home secretary has had to agree with France a form of cooperation about the channel crossings.

Though, as Zoe Gardner points out on Twitter, this is not the first time such a thing has been announced:

Oh I see it’s time to bring back out this thread of Tory Home Secretaries signing THE deal with France that is going to end unauthorised journeys to the UK… #r4today https://t.co/NgWMhO0ewv

— Zoe Gardner (@ZoeJardiniere) November 14, 2022

*

Another misconception is that deterring those crossing the channel will work.

That one can remove the “demand”.

That by threatening people with flights to Rwanda or keeping people in horrible conditions the United Kingdom will somehow reduce the number of those seeking asylum here.

The demand seems, to further use economics jargon, “inelastic”.

All that appears to be happening is that, by using various hostile, inhumane and illiberal measures, is that the same number of people are still coming – but we are treating them less well.

The “push factor” does not seem to care about our unpleasant ways.

And there is little that the United Kingdom can do to directly address the “push factor”.

*

So what we have are high significant numbers of asylum seekers.

[Word ‘high’ replaced, as some commenters complained it was misleading.]

What should be done?

Well, as Gardner further says, the dealing with the actual claims themselves should be the priority:

And to reiterate: no, there’s no need to process asylum claims in France or anywhere else. Let people travel here safely. Process their claims here fast and fairly. That’s it. #r4today

— Zoe Gardner (@ZoeJardiniere) November 14, 2022

*

What we can take control of is not our border – but our internal processes, and how well those processes are resourced.

That is what is within our control.

Anything else either requires sincere international cooperation or is outside of our or any other receiving country’s direct control.

And that is control we cannot take – either “back” or otherwise.

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

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

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Posted on 14th November 202215th November 2022Categories Brexit, Home Office, International Agreements, International law33 Comments on What does it mean to “take (back) control” of a border?

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