My new FT Video: constitutionalism and the reversal of Roe v Wade

12th July 2022

This blog is written from a liberal constitutionalist perspective.

But like “country” and “western”, liberalism and constitutionalism are not the same thing, even though the coupling works well in practice.

Take for example the abortion issue.

From a liberal perspective, the issue is about who makes the decision.

The decision here being whether a woman can have access to a safe abortion or whether she should be forced to continue with an unwanted pregnancy.

The liberal will consider that the decision – at least before late in the pregnancy – should be that of the woman, in consultation with her doctors.

Others, however, will insist that the decision should absolutely not be that of the woman concerned, but should be decided on her behalf by a legislature.

But.

Believing that the decision should be that of the woman concerned does not, in and of itself, tell you how the constitutional and legal system should provide for that right.

And one can be a conservative constitutionalist as well as a liberal constitutionalist, as constitutionalism is about believing there should be rules and principles that provide the parameters of political and legal action.

In the United Kingdom – and now including Northern Ireland – the right to an abortion is not a constitutional right, or it is not usually considered as such.

It is a legal right provided for by statute.

In the United States it was not possible to enact similar legislation that would cover all Americans, not least because of the disproportionate power many conservative but less populous states have in the federal legislature.

So the route taken by those in favour of a right to abortion was to litigate so that the United Supreme Court found that the right to an abortion was a constitutional right.

And the Supreme Court found that there was such a right in 1973.

Then, a couple of weeks or so ago, a differently constituted Supreme Court found there was not such a right.

Over at the Financial Times I have done a video setting out this constitutional journey.

The video is also on YouTube:

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Many of you will have strong opinions about abortion – I certainly do – but the focus of this blog and and any comments below is on how the issue is or should be dealt with as a matter of law.

The United States took a constitutionalist and judicial approach, not least because there was no other United States-wide approach that would work.

But what one Supreme Court can give, another Supreme Court can take away.

And so it was always a precarious basis for such an important right.

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Should the “Bill of Rights” make provision for the right to an abortion?

29th June 2022

At Prime Minister’s questions today, the Lord Chancellor – deputising for the Prime Minister – was asked if the right to an abortion should be placed in the “Bill of Rights” currently before parliament.

He responded:

“…the position on abortion is settled in UK law and it is decided by hon. Members across the House.  It is an issue of conscience, and I do not think there is a strong case for change.  With the greatest respect, I would not want us to find ourselves in the US position, where the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House.”

Is he right?

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In respect of abortions, the Labour MP Stella Creasy recently tweeted:

And, after the Lord Chancellor’s comments today, she tweeted the following:

Does she have a point?

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I happen to be strongly in favour of a woman’s right to choose to have an abortion – but the question here is not about the ultimate rights and wrongs of the abortion issue.

It is about whether the “Bill of Rights” should be put to this use.

From the Lord Chancellor’s perspective, the abortion issue is “settled” – at least in England and Wales – and here he presumably means the Abortion Act 1967.

And to the extent that abortion was legalised in England and Wales by an Act of Parliament, rather than by a (contentious) Supreme Court decision as it was in the United States, the Lord Chancellor has a little bit of a point about it having been determined by parliament, and not by the courts.

But it is not much of a point.

In part, the issue is not politically “settled” – and as recently as 2008 MPs were substantially divided as to the term limits for abortions.

And as Creasy avers, the position in Northern Ireland was not legally changed until very recently (with her astute and deft amendment to the Northern Ireland (Executive Formation etc) Act 2019):

And so, thanks to that amendment, there are now the Abortion (Northern Ireland) Regulations 2020.

Of course, making access to abortions legal is not the same as providing practical access to abortions, as many on Twitter pointed out in response to Creasy’s first tweet.

And some may say there is not much point providing legal access in Northern Ireland but not practical access:

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The “Bill of Rights” issue is not whether the substantive law on abortion should be changed – the substantive legal position has been changed.

The issue is whether a general right to an abortion should be placed in the “Bill of Rights”.

Here the position is less straightforward

On one hand, this blog has repeatedly warned of the folly of “enshrining” things in law.

This is because nothing can be meaningfully “enshrined” in law – as amendment or repeal is only a parliamentary exercise away.

And the “Bill of Rights” already has provisions that are legally meaningless – there is, for example, a proposed right to a trial by jury which goes no further than saying that if you already have a right to a trial by jury then you have a right to a trial by jury.

But.

If we are going to have a “Bill of Rights” then there is an argument that it should, well, contain some rights – and perhaps rights which have not been articulated plainly in other statutes.

And the Lord Chancellor’s objection that including such a right in the “Bill of Rights” would mean “the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House” makes no sense.

A statement of a general right in the “Bill of Rights” would not, by itself, lead to any more litigation than there would be already under the current legislation.

The United Kingdom would not suddenly become the United States just by adding this right to the “Bill of Rights”.

Indeed, providing the right in primary legislation is pretty much the opposite of what has happened in the United States.

The real reason, one suspects, for the opposition of the Lord Chancellor and other government ministers, is that the “Bill of Rights” is not for this sort of rights.

The right to an abortion is the wrong sort of right for what they are seeking to do with the “Bill of Rights”.

It is not intended that the legislation will actually confer new rights – despite its portentous title.

The intention is that the legislation will make it more difficult for people to practically rely on their rights.

So, although one can doubt the efficacy of “enshrining” things in domestic law, Creasy’s proposed amendment perhaps serves a helpful purpose in exposing the “Bill of Rights” as not being about rights at all.

And if such a right is included in the “Bill of Rights” then it may lead to the issue being more “settled” than the 2008 debates and the Northern Ireland experience indicates it to be.

If we are to have a “Bill of Rights” then this is presumably the sort of right – highly relevant to actual people – that should be included.

But what do you think?

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Posts elsewhere on the “Bill of Rights” and on by-elections

27th June 2022

Just a brief post here today, as I am currently writing one of my longer posts for (I hope) posting on this blog later in the week.

Over at Al Jazeera, I have written again from a liberal constitutionalist perspective for an international audience.

My piece there this week is on the significance of last week’s by-elections – and why, generally, by-elections and other ‘mid-term’ events can be constitutionally significant, even if they are not good predictions of general election results.

And this is because in the British constitution it is common for Prime Ministers to either gain or lose power between general elections (or both) – as this blog has set out previously.

Over at Prospect I have done a comment piece on the new ‘Bill of Rights’ – focusing on its pointlessness but also emphasising that it shows the wrong priorities for the Ministry of Justice, a small department with a limited budget.

Today, criminal barristers are on strike – as the criminal justice system is in an ongoing crisis.

For the current Lord Chancellor to prioritise this ‘Bill of Rights’ above everything else at the Ministry of Justice is a serious error.

So, as my Prospect piece concludes, this bill is the legislative equivalent of lounging on a beach while Afghanistan falls.

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Why the current government may not have a mandate for repealing the Human Rights Act – and why this may matter

24th June 2022

In yesterday’s post on this blog, the successive manifesto commitments of the current governing party since 2010 on the Human Rights Act were set out.

These commitments were as follows :-

The 2010 Conservative manifesto (twelve years ago):

“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the  Human Rights Act with a UK Bill of Rights.”

The 2015 Conservative manifesto (seven years ago):

“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”

The 2017 Conservative manifesto (five years ago) placed a foot on the ball:

“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”

And then most recently, in the 2019 Conservative manifesto:

“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”

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This post looks at what the implications of that last 2019 commitment may be – though, in doing so, it is accepted that manifesto commitments are not legally binding obligations, and so there is leeway in how they are to be interpreted.

The 2010 and 2015 manifesto commitments do not need much interpretation in respect of the Human Rights Act – they are as plain as any pikestaff.

The Human Rights Act was to go – replaced, scrapped.

The 2017 commitment is also not ambiguous – the Human Rights Act was to stay, for now.

But.

The 2019 commitment was not that the Act would be replaced or scrapped, or that it was to safe for now.

The 2019 commitment was only to ‘update‘ the Act.

The 2019 commitment could have been to ‘scrap’ or ‘replace’ the Act – but the governing party decided against making that commitment.

The governing party opted for ‘update’ instead.

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The governing party thereby has an election mandate for ‘updating’ the Human Rights Act.

And so if this is what they do, then that cannot be gainsaid – at least not constitutionally,

But the government is not now proposing merely to update the Act – but to repeal it and replace it with another statute.

To do, in effect, what the 2010 and 2015 manifestos promised.

But do the governing party have a mandate for repealing the Human Rights Act outright?

In other words: is repeal within the scope of an ‘update’?

Again, it is important not to be legalistic about this – no legal claim can be brought for a government breaking its manifesto promises, and so no manifesto should read as it is a formal legal document.

But what is stated in a manifesto is not without constitutional consequences.

This is because of the so-called ‘Salisbury doctrine’ – a constitutional convention.

This doctrine provides – quite rightly – that it is not open to the House of Lords to block or delay legislation for which a government has obtained a mandate at a general election.

The question thereby becomes whether this proposed ‘Bill of Rights’  is protected by the Salisbury doctrine or not.

If it is protected by the Salisbury doctrine, then the House of Lords cannot and should not block or delay the bill – though, of course, it may seek to make amendments.

If the bill is not protected by the Salisbury doctrine, however, then there could be such delays – including forcing the government to resort to the Parliament Acts to force the law onto the statute book after a year without the support of the House of Lords.

As the new bill substantially reduces rights and freedoms of individuals, there may be those in the House of Lords that will want to amend the bill beyond what the current government would want to accept – and to insist on those amendments.

Their view may be that “updates” – whatever that means – may be fine, but not outright repeal –  because the government cannot point to any mandate for repeal.

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If a bill is protected by the Salisbury doctrine, then the House of Lords will (usually) back down before the government has to invoke the Parliament Acts.

Of course, the only reason any of the above may be an issue is, no doubt, that the governing party did not want to say expressly in its manifesto that it would repeal the Human Rights Act outright, as that might have scared the voters, if not the horses.

A promise to ‘update’ was a lot less alarming to middle-ground voters.

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One suspects the House of Lords will be wary about opposing the government in respect of such a populist piece of legislation.

And the government – and its media and political supporters – will clap and cheer at the prospect of a ‘peers vs people’ narrative.

But because of the mild wording of the 2019 manifesto commitment, the government cannot be certain of the House of Lords will back down on outright repeal.

And, what is more, this government in particular is not in any strong position to insist that other elements of our constitutional order comply with mere conventions.

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“Oh no, not again” – the story of the Human Rights Act and of the new “Bill of Rights”

23rd June 2022

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“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was ‘Oh no, not again’.”

– Douglas Adams, The Hitchhikers Guide to the Galaxy

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Legal and constitutional commentators are the petunias of the modern age.

The current bout of constitutional excitements started in around 2015, and these excitements have carried on relentlessly since.

Again and again the government has threatened to do something – or done something – drastic in respect of our constitutional arrangements.

Seven or so years later it is rather exhausting to keep up.

And giving up is tempting.

But keep up we must, as these are serious matters – even if government and its political and media supporters do not take them seriously.

For the political and media supporters of government will clap and cheer at each of these constitutional disturbances – and will delight in the ‘libs’ being ‘owned’.

Well, this ‘lib’ is more bored than owned.

But commentary must be offered, if only as a corrective to the narratives of those currently in power and those who support them.

And so this is the story of the Human Rights Act 1998 and the supposed “Bill of Rights” with which the government wants to replace it.

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Before the Second World War, a certain sort of English person would have boasted not of having rights but of having liberties.

The notion was that an English person was free to do whatever they wish, unless it was prohibited.

The self-image was of a robust anti-authoritarianism – and it was an image which gained wide purchase.

And to an extent it was a fair depiction – the powers of the Crown had generally been made subject to Parliament, and most exercises of state power could be contested before a court.

But.

The Victorian doctrine of parliamentary supremacy – which asserted that Parliament could make or un-make any power it wanted – had as an unfortunate implication that the subject was powerless in the face of a determined executive dominating the legislature.

This implication was noticed by, among others, a Lord Chief Justice – Lord Hewitt – who in 1929 published The New Despotism warning of the illiberal power of the British state.

And in the Second World War what Hewitt warned of in theory was carried out in practice with the government’s use of the defence regulations.

For all the comforting self-image, there was not in practice robust English liberties that would actually protect the subject against the king’s government – let alone the citizen against the state.

Perhaps there never had been.

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Following the Second World War there was a spate of international conferences and organisations that purported to declare and protect rights.

One of these, of course, was the European Convention on Human Rights.

This convention provided for a number of rights, contained in articles.

Some of the rights were set out in the original convention, and some were added in later protocols.

The convention was connected to the Council of Europe, which now comprises most European states:

By being party to the convention, a country agrees to be bound by the convention as a matter of international law.

Some claim that the convention was promoted by Winston Churchill and drafted by Conservative lawyers – but their contribution should not be overstated (see this fine book for what did happen).

The United Kingdom at the time the convention was ratified in 1951 did not see the convention as controversial or as being inconsistent with domestic law.

The convention did not only provide for rights but it also established a court to determine whether any signatory – as a matter of international law – was in breach of its obligations under the convention.

That court is the European Court of Human Rights in Strasbourg, of which you may have heard.

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What happened next is not widely known.

As is described in a House of Commons library paper:

“Although the UK ratified the European Convention on Human Rights in 1951, it was 1965 before the UK Government declared, by an option under then Article 25 of the Convention, that it would accept the jurisdiction of the Court in relation to individual complaints. The optional clause was debated in late 1980, amid charges that the Court was “interfering with the exercise of parliamentary sovereignty” and “limiting [the UK’s] freedom of action”, but in 1981 and subsequently it was accepted for five more years. In 1994, during the negotiation of Protocol 11, the UK tried in vain to ensure that the right of individual petition would remain optional. The Government thought the Court had too much power, and the possibility of non-renewal of individual petition would act as a check on its authority.”

The United Kingdom did not allow anyone to actually petition the Strasbourg court until 1964.

And until relatively recently – the mid-1990s – governments of all parties resisted the reach of the Strasbourg court.

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This resistance had the following effects.

First, it created immense costs and delays for individuals who wanted the United Kingdom to comply with its international obligations.

For example, in the case of Malone – in my view, one of the most important constitutional cases in the last hundred years – a 1977 incident did not reach a Strasbourg judgment until 1984.

There the Strasbourg court held that any surveillance of the individual by the state had to have a lawful basis.

The English court had held, in effect, that just as it was open to any subject to do as they wish unless prohibited, it was also open to state bodies to do as they wished unless prohibited.

That’s robust English liberties, for you.

The Malone decision in turn led to the United Kingdom placing its surveillance regime onto a legal – and thereby legally contestable basis.

But it took seven years for the judgment to happen.

Second, it meant that lawyers developed various means of referring to Strasbourg jurisprudence in domestic courts.

I remember seeing this article as a law student in the mid-1990s:

By then it was getting rather silly.

A United Kingdom litigant seeking to rely on their convention rights had to go to the cost and delays of going to Strasbourg, or had to find a clever lawlerly way of relying on Strasbourg caselaw in a domestic case.

But what that litigant could not do is rely on their convention rights in a straightforward way before the domestic courts – even though the United Kingdom was bound by the convention (and by the Strasbourg court’s interpretation of the convention) as a matter of international law.

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And then, in 1997, the electorate of the United Kingdom returned a Labour government:

Things could only get better, or so people thought.

And one thing the government did to make things better was to introduce legislation so that the convention could be relied on in domestic courts.

This would not only solve the increasingly absurd problem of the costs and delays of individual petition and indirect reliance, it also gave effect to a key provision of the Good Friday Agreement which was signed in April 1998.

One of the express bases of that agreement was that the convention had to be capable of being directly enforced in the courts of Northern Ireland – in particular against the Northern Irish Assembly:

And so the Human Rights Act 1998 came into being, which allowed direct access to the courts for breaches of the convention, and not just for those in Northern Ireland.

As the government of the day boasted in an allusion to the popular football song: rights were brought home:

The Act took effect on 2 October 2000.

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But.

The Human Rights Act never gained universal support.

This is for, I think, two main reasons.

First, the popular media disliked how English judges created an entirely new tort – misuse of private information – on the back of the 1998 Act.

The Act does not expressly provide for any such cause of action.

But case-by-case, the courts crafted a new basis for suing for breaches of privacy.

And the courts did not ‘develop’ the corresponding right of free expression in any comparable way.

Few reporters and editors came to see the Human Rights Act as an instrument that would protect them like their American counterparts who could point to their constitutional rights.

Second, the politics following 2001 and 9/11 pushed against human rights protections.

It is difficult to imagine the Human Rights Act being enacted after 2001 had it not been enacted before.

The Labour governments became more illiberal, as anti-terrorist act followed anti-terrorist act.

And by 2006:

Human rights may well have come home – but they were now unloved by the Act’s own parents.

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At this time, the then-opposition Conservatives were becoming even more opposed to the Human Rights Act than the Labour government.

So also in 2006:

The 2010 Conservative manifesto (twelve years ago):

“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the  Human Rights Act with a UK Bill of Rights.”

The 2015 Conservative manifesto (seven years ago):

“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”

The 2017 Conservative manifesto (five years ago) placed a foot on the ball:

“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”

And then most recently, in the 2019 Conservative manifesto:

“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”

As it happens the government elected on the back of that latest manifesto is not prosing to “update” the Human Rights Act but now to repeal it – at least in form.

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Alongside these manifesto commitments, there have been various attempts to find a practical way of repealing or updating the 1998 Act.

In 2011 there was a commission established by the government:

But this went nowhere.

In 2014 the then justice secretary launched a new attack at Conservative party conference.

And that went nowhere.

And in 2015-16, the then prime minister was again about to take on the Human Rights Act – and may well have done so but for Brexit:

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And now, in 2022, we have yet another attempt to repeal the Human Rights Act, twenty-five years after the Human Rights Bill was introduced by the incoming Labour government.

The difference now, however, is that the proposals have reached the stage of draft legislation before Parliament.

And the justice secretary proposing the new legislation, Dominic Raab, is a long-term opponent of the Human Rights Act and was the junior justice minister under Cameron responsible charged with finding an alternative to the Act.

In effect, the Human Rights Act is Moby Dick to Raab’s Captain Ahab.

It does not matter that the criminal justice system is in crisis, scarce ministerial time and departmental resources will be devoted to repealing the 1998 Act.

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The 1998 Act is unlikely to survive this assault.

There is enough time for the bill to pass before the next general election, and there is sheer determination to get the bill through.

But.

The essentials of the Act will remain.

The Good Friday Agreement will still require that the convention can be given direct effect in the courts of Northern Ireland.

The United Kingdom will still be bound by the convention as a matter of international law.

If the domestic courts do not protect convention rights then litigants can still go to Strasbourg.

The United Kingdom will still be required to comply with the decisions of the Strasbourg court.

And resourceful lawyers – and judges – will still find ways of referring to Strasbourg jurisprudence in domestic courts when determining convention rights.

And so one consequence of the new bill is that cost and expense will be added to the process of relying on convention rights under a treaty that will still bind the United Kingdom under international law.

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As this blog set out yesterday, the core of the new bill is the same as the 1998 Act.

The convention rights are still listed in the schedule; the definition of convention rights is the same; and the key obligation on public authorities to comply with the convention is also the same.

What the bill does is to introduce a number of provisions that will make it far more difficult for litigants to rely on those rights in domestic courts.

Over at the blog of Professor Mark Elliott there is an outstanding post – written within a day of the publication of the new bill – that details all the new legislative contraptions and devices, the purpose of which is to inconvenience the litigant seeking to rely on their convention rights.

Elliott’s post should be read and circulated as widely as possible.

And Elliott’s conclusion is compelling:

“the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights.”

And this is why – jaded and fatigued as any sensible person must be who is keeping up with this government’s ongoing attack on our constitutional arrangements – we have to be vigilant about this latest exercise in limiting the ability of individuals to rely on rights which the United Kingdom is bound to protect by international law.

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The government is not – and cannot – take the United Kingdom out of the European Convention of Human Rights – at least not without breaching the Good Friday Agreement.

The government is still obliged to give effect under international law to the rights contained in convention – and individuals will still have the right to petition the court.

But after twenty years of trying, the current government party has put forward the means of attacking the Human Rights Act by limiting the ready enforcement of these rights by individuals.

And so as a bowl of petunias once no doubt thought: brace, brace.

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A first glance at the Bill of Rights Bill

22nd June 2022

The new Bill of Rights Bill 2022 has been published.

On the face of it, this is a very significant move.

The Bill even tells us that when enacted it will be known as the “Bill of Rights 2022”.

Note this means it will now be one of a small group of statutes which will not be known as Blah Blah Act Date.

No, this legislation demands comparison with the (actual) Bill of Rights of 1688.

Portentous stuff.

But.

In broad terms, this new legislation makes no real difference to the Human Rights Act 1998.

For example, schedule one to the Human Rights Act 1998 sets out the articles of the European Convention of Human Rights:

And Schedule 1 to the new legislation also sets out the articles of the European Convention of Human Rights:

The proposed Bill of Rights does not create any new ‘British’ rights instead of the European Convention.

The fundamental purpose of the 1998 Act and the new bill are the same: to provide a basis in domestic law for giving effect to the convention rights in the European Convention.

And the key operative provision is the same.

Here is section 6 of the 1998 Act:

And here is clause 12 of the proposed bill:

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So.

Both the 1998 Act and the new legislation place the rights under the European Convention of Human Rights into English law by means of a schedule.

And the 1998 Act and the new legislation provide – in identical language – that public bodies must comply with those rights.

Even the defintion of “Convention rights” are the same.

The 1998 Act:

The new Bill:

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You may wonder what is the point of an entirely new enactment that does, at the fundamental level, exactly the same as the legislation it is supposed to replace?

And the answer to that is there is no real point.

The new legislation does make a difference in respect of how the convention rights can be enforced in certain situations.

The overall effect – odd for legislation which will be called ‘The Bill of Rights”, if you think about it – is to make it harder practically for convention rights to be enforced.

But that is done by the means of various processes and other tinkering – but nothing which warrants such a legislative overhaul.

Those new provisions can be looked in detail at as the bill proceeds.

But in respect of the fundamentals this new bill gives effect to the same Convention rights with the same key obligation and with the same defintion of convention rights.

The rest is detail and symbolism.

***

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Who watches the watchmen?

Summer Solstice 2022

Over at Al Jazeera – where I am pleased to write posts from a liberal constitutionalist perspective – I have written about what the Lord Geidt resignation tells us about British politics.

Somewhat flatteringly, that post has been chosen as a ‘best column’ by The Week magazine:

From a personal perspective, the post is one of very few I have written for the mainstream media with which I am happy.

(One day I will get the hang of writing paragraphs with more than one sentence.)

On the back of that Al Jazeera post I thought I would add here some thoughts about constitutionalism and absolute power.

For, as Lord Acton famously once said (and to which I allude in the Al Jazeera post), power tends to corrupt and absolute power corrupts absolutely.

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One problem with many – if not most – proposed or imagined political systems is that there is little or nothing to check or balance those who will have the most power under that system.

The hope is presumably that those with the most power will be selfless patriots – good kings, good chaps, and so on.

But, of course, what will tend to happen is that those with power will be corrupted, and those with absolute power will be corrupted absolutely.

And not just corrupted in a narrow financial sense, but in the broader sense of becoming debased.

In this way Orwell’s pigs in Animal Farm may be a more realistic guide to what happens with sustained one party control than the focused O’Brien in Nineteen Eighty-four.

Alan Moore – who I mention expressly in the Al Jazeera post – has repeatedly shown in his stories what can happen when individuals get unchecked power.

In Watchmen – there is a character with absolute superpowers who goes quite mad, a character with immense wealth who becomes immensely destructive, and a character with complete government protection who does whatever he wants to whoever he wants.

And these are the supposed good guys – and none of them is the supposedly unhinged one, Rorschach.

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Switching from imagined communities to historical examples, there are actually few examples of that most peculiar figure ‘the enlightened despot’.

What we do have are despots with good P.R. and gullible historians.

For if a leader is ‘enlightened’, they do not need to be a despot.

Even the supposed good guys of the modern age – the British – have a wretched record if you look closely enough – for example in Kenya, in Northern Ireland, and in Afghanistan and Iraq.

The documented evidence of torture and war crimes by the British cannot be denied, but few realise or care.

For that is what happens when you have good P.R. and gullible historians.

Even the popular comedy meme about ‘Are we the bad guys?’ is dressed in foreign uniforms.

But corruption – in both its narrow and broad sense – is not just about what happens to foreigners.

It can happen in any polity – and with any rulers, if they believe they can get away with it.

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That is why any political system which confers great power on any individuals is suspect.

Yes, you may have a selfless patriot as an initial ruler, but what do you get when the selfless patriots die away?

The primary job of any liberal constitution is not that it provides and allocates powers, but that it effectively checks and balances those with powers.

It assumes the worst – even if there are hopes for the best.

And if those with the greatest powers in any political system are without checks and balances then it should not come as a surprise that powers are abused.

Indeed, it would be more of a surprise if they were not.

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The Metric Martyrs case – twenty years on

30th May 2022

Before Brexit, there were the Metric Martyrs.

The key legal case here was a set of appeals which were decided by the High Court in 2002, in a judgment now known as Thoburn.

The street-level appellants faced criminal sanctions and other legal impediments because they dealt their groceries and wares in imperial measures rather than metric measures.

Re-reading Thoburn some twenty years later – in the light of the United Kingdom’s departure from the European Union and this weekend’s ‘news’ about the government wanting to revive imperial measures – is an interesting exercise.

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The first striking thing about Thoburn is the complexity of the applicable law.

Few lawyers – if any – would find it easy to follow paragraphs 8 to 35 of the judgment, which sets out all the relevant legal provisions.

Even the judge who gave the decisions of the court found it a complicated mess, saying at paragraph 81:

“In the course of the hearing I made no secret of my dismay at the way in which the criminal offences relevant to the first three of these appeals had been created. It is a nightmare of a paper chase. I accept that there was no prejudice to these individual appellants, who knew well what the law was because they were concerned to campaign against it. But in principle, I regard it as lamentable that criminal offences should be created by such a maze of cross-references in subordinate legislation.”

(The judge was Sir John Laws – notable to non-lawyers for his name and for being the uncle of Dominic Cummings – and it would be great if commenters assume these two things do not always need to be stated in their comments below.)

This judicial observation has wider import.

It is the lot of regulatory law – especially that law that regulates commerce and retail – to be complicated.

And this in turn means the law – like the one regarding the shape of bananas – will not fare well against the urges of simplification and distortion.

On one hand, you had the accessible image of market traders pricing and weighing their goods in imperial measurements for walk-up customers in English towns.

And on the other hand, you have pages and pages of impenetrable legal-ese which sets out why doing such a thing is a criminal activity leading to criminal sanctions.

Few onlookers would side with the legal-ese.

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A second thing about the Thoburn case is just how hopeless the legal arguments were that were put on behalf of the traders.

Wide ‘constitutional’ submissions were made about ‘implied repeal’ and entrenchment of statutes – which were met by an equally wide-ranging ‘constitutional’ judgment.

This is why the Thoburn case is now – despite not being a Court of Appeal of House of Lords case – a staple of constitutional law teaching and essay writing.

The legal arguments were hopeless.

And this, in turn, was (in my view) a problem.

Many people at the time (and since) thought there was something not right about these prosecutions.

It was one thing to have common rules for cross-border trade within the single market, but it was another to prosecute and seek to give criminal records to local greengrocers and stall traders selling to local customers.

It seemed – to use a European Union concept – disproportionate.

But the hopelessness of the arguments at appeal indicates that here was a grievance here without a remedy.

There appeared at the time to be no way of practically contesting the disproportionate criminalisation of the grocers and the traders.

Even if you are (as I was and am) a supporter of the single market – and thereby of cross-border commercial standardisation and harmonisation – something just did not seem right about these prosecutions, but there was nothing that could be done about it.

And I submit that this sense of impotence in the face of what was perceived to be the legal impositions of the European Union was a contributing factor to what later became Brexit.

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Weights and measures – like currencies – are both instruments and ornaments.

As means of exchange, such measures necessarily have to have a shared understanding – and anything which has a shared understanding will also tend to have cultural significance.

As this informative and fascinating thread by an author of a forthcoming book on weights and measures describes, one should not underestimate how important measures are to people:

https://twitter.com/jjvincent/status/1530905866689445888

I happen to have been born in 1971 and so was educated with metrification – and I still habitually think in miles, yards and feet, in stones and pounds, and in pints.

And this is despite not being especially patriotic, and not being opposed to metrification in principle.

I suspect it is not an idiosyncratic trait; I suspect many of you tend to think in imperial measures too.

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But.

The government’s latest proposals. of course, do not make any sense.

This is partly because – after the Metric Martyrs case – both the United Kingdom and the European Union pulled back from strict applications of unified standards.

Supplementary indications of measures were to be allowed indefinitely – imperial markings as well as metric markings

And, in any case, often the relevant laws were home-made and not from Brussels:

As a former Lord Chancellor avers, this ‘policy’ is also a political rallying call which is made again and again:

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The United Kingdom’s move towards universal measurements predates membership of the European Union and its predecessor communities.

And over time, no doubt, these more ‘rational’ and internationally acceptable measures will take hold.

(Few now can reckon in pounds and shillings – which also went in 1971.)

Yet it is one of those areas where law and policy cannot easily outpace lore and culture.

Units of measurement are the means by which people understand the world about them and indeed understand the dimensions of their own bodies.

They will not easily shift – and perhaps some may never disappear altogether.

The current government is in deep political trouble – and so it is not surprising that it seeks to get the benefit of nostalgia and sentiment.

Such a government should be treated with disdain.

But changing the everyday practices and conventions of a people is a slow process – and with metrification it still has not ended.

Not by a country mile.

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‘Partygate’ is not ultimately about lying to parliament, or breaking the criminal law, or putting lives at risk – it is about fair dealing

24th May 2022

‘What is justice?’ is a question that has been long discussed by clever philosophers, jurists and political theorists.

But one way of understanding justice is to see it not as a thing, but the absence of a thing: justice means a lack of injustice.

Justice is thereby defined by what it is not.

A just society is one where concrete injustices have been addressed; a just outcome is the solution to an actual unjust situation; and so on.

And for many it is injustices that matter, for injustices rankle.

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With ‘Partygate’ it seems what rankles most is the unfairness of it, the injustice.

That the current Prime Minister lied to Parliament and to the rest of us surprises no sensible person, for it is the one quality about Boris Johnson that all sensible people will know to be true.

That the current Prime Minister broke the law and guidance again is no shock – and, indeed, it would be more of a shock if, in any given situation, Johnson had followed the law and any guidance when he did not need to do so.

It does not even seem to matter to that many – though there are exceptions – that Johnson broke laws and guidance designed to keep people safe.

The anger about ‘Partygate’ appears (at least to me) not to be motivated primarily by the concern that Johnson was personally putting others at risk (though this will anger some).

What seems to be what upsets people about ‘Partygate’ is that while others were immensely affected because they had to comply with rules, or were punished if they did not, the Prime Minister and others in Downing Street casually did not comply with those rules.

The rules, of course, that Johnson and his government imposed upon the rest of us – the laws his government issued and enforced, the guidance he and his government promoted night after night.

The stories which appear (again to me) to be getting the most traction on news sites and on social media are those from people who, for example, could not visit their loved ones on their deathbeds or were not able to attend funerals.

Had the story been about Johnson in a serious dilemma choosing to break the rules to see a loved one in hospital or attend a funeral, then people would perhaps be more forgiving.

Many people in extreme situations may choose to break rules.

But the situations in which Johnson and his circle broke the rules were not extreme situations or dreadful dilemmas.

And this disparity in the seriousness with which one abided with the rules is what annoys – disgusts – people who would otherwise shrug.

Not the lies, not the rule-breaking itself – but the unfairness.

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‘Partygate’ is not about parties or cakes; and it is not ultimately about lying to parliament, or about breaking the criminal law, or about putting lives at risk; it is at bottom about fair dealing.

And that is why – months into this scandal – ‘Partygate’ will not go away easily.

Downing Street partied while the rest of us were prevented from going to visit deathbeds or attend funerals, at the behest of Downing Street.

That was unfair.

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The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

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