Category: Human Rights and Civil Liberties

Russia’s flimsy constitution and the USA’s rigid constitution, and the notion that codified constitutions are necessarily a good thing

5th May 2022

From time to time this blog (and my commentary elsewhere) is accused of being against a codified constitution for the United Kingdom.

(A codified constitution is often also known – inexactly – as a ‘written’ constitution, but uncodified constitutions are usually written down, just not in one place.)

This accusation of being against a codified constitution for the United Kingdom is, in my view, unfair and incorrect.

A codified constitution for the United Kingdom may be a good and welcome thing.

Or it could be a horrible and unwelcome thing, entrenching domestic executive power yet further.

It all depends.

This is because codified constitutions can be good things or bad things.

The view of this blog (and my commentary elsewhere) is that a codified constitution of the United Kingdom is not necessarily a good thing.

And it rejects the casual plea ‘and this is why we need a written/codified constitution’ that often follows some political outrage.

A codified constitution is not a liberal panacea.

It is not even necessarily better than our current constitutional arrangements – so the alternative plea of ‘at least it would be a step in the right direction’ is also misconceived.

A codified constitution could be, from a liberal perspective, very much a step in the wrong direction.

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Codified constitutions are relevant to two of the current main international news stories – the Russian invasion of Ukraine and the likely overturning in the United States of Roe v Wade.

As this blog has previously set out, there are few constitutions which on paper are as liberal and wonderful as that of Russia.

And yet the Russian president had unlimited illiberal powers at home and no check on what he orders to be done (or attempted) abroad.

In the United States, the fundamental right of a woman of access to the means of aborting a pregnancy may no longer be a constitutional right, and thereby enforceable in all the states of the union.

This is because its status as a constitutional right rests only on mere case law, and not on the express provisions of the constitution itself.

And that, in turn, is because the constitution of the United States is difficult to amend generally, and it is practically impossible to amend on the issue of abortion – and so the constitutional right depended on litigation rather than on any formal enactment.

Other rights that seemed significant in the eighteenth century are set out in writing and cannot (easily) be removed.

Americans have the right to a well-regulated militia, but not a right to regulated and safe abortions.

But…. but….

…those are different, will come the defiant response of the constitution-mongers.

A codified constitution of the United Kingdom would be just right – not too flimsy, and not too rigid.

Perhaps this ideal codified constitution will be drafted by Goldilocks.

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Again, nothing on this blog should be taken to mean a codified constitution will necessarily be a bad thing.

But one should be critical, and one should not even presume that a codified constitution would tend to be a liberal panacea.

The government – backed by the considerable resources of the government legal service and the treasury panel of barristers – would seek to game any written constitution in the executive’s favour.

And against such a concert, mere wishful thinking will be no match

But…. but….

…this should be different, will come the response of the gamed constitution-mongers.

But.

Be careful what you clamour for.

A liberal constitutional order is not easy to achieve.

And that it may be the current arrangements without codification are more liberal than anything that the government would permit to be put in place as a codified constitution.

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What the next Queen’s Speech may tell us about this government

27th April 2022

Yesterday’s I newspaper had this interesting front page about the upcoming Queen’s Speech:

The article supporting the front page told us:

“At least a dozen Government bills which were promised at the Queen’s Speech a year ago will not become law in time for the next speech which takes place on 10 May. Downing Street is seeking to push through another 10 pieces of legislation in the next few days.”

What is especially interesting about this front page is its timing.

We are more-or-less at the midpoint of this parliament.

The last general election was on 12 December 2019, and the latest date for the next election, it would seem, is 24 January 2025.

The next Queen’s Speech – which has been set for 10 May 2022 – will mark the start of the last full parliamentary session where there would be adequate time for any significant reforms to be properly carried through after enactment.

In other words: if the government was to attempt major changes through legislation, this is the time.

But.

This government does not appear to have the appetite for major reforms.

Promised overhauls of, for example, our complex systems for planning or procurement will again not be put forward.

The (impartial) House of Commons Library provides the following list of Bills promised in the last Queen’s Speech that are yet to be introduced:

(‘Procurement Bill’ sounds like a bloke who works in supplier management in a less exciting sequel to Postman Pat.)

The library also lists the bills ‘foreshadowed’:

But as any decent scriptwriter will tell you, foreshadowing is not character (or story) development.

And it would seem that this government finds it easier to announce fundamental reforms than to actually take them forward and implement those reforms.

The ultimate reason for this is simple.

Reform is hard, policy is hard, law-making is hard.

Getting one’s thoughts together to the extent of actually having a Bill ready to introduce to parliament is hard.

The first reading in parliament of a Bill is not stage one of a process, but about stage seven or eight.

The hard work takes place on the departments and with parliamentary drafters.

Handing a Bill to ministers to pilot through parliament is not to be done lightly.

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The former Downing Street adviser Dominic Cummings had – regardless of his other merits and otherwise – ambitious plans to shake our planning and public procurement regimes.

No sensible person with knowledge of planning or public procurement would say the current arrangements are perfect.

An ambitious, reforming government would now be ready to grapple with fundamental reforms in planning, public procurement, and many other areas.

And this government would be in a strong position to do – on paper.

For this government has the greatest prize that the constitution of the United Kingdom can bestow: a large working majority in the House of Commons.

This means the government not only has all the advantages of extensive executive power (under the royal prerogative and otherwise), and access to the government legal service and the treasury panel of barristers for fighting cases in the courts.

It also means that the government can be confident of passing legislation through the House of Commons and, if necessary, forcing it through the House of Lords too.

Few Prime Minsters win this prize.

Clement Attlee had this prize, and used it to drive through welfare state legislation; Thatcher did with trade union and privatisation legislation; and even Tony Blair, in his first term, was able to get the Human Rights Act and other legislation on the statute book.

And our current government?

Here is a challenge: take a moment to name one flagship Act of Parliament passed since the general election.

Yes, there has been Brexit and Covid legislation – but this would have to have been passed whoever won the last general election.

Can you think of one?

I am a law and policy commentator – and I can can only think of a possible few – though various nasty laws on borders and protests are about to come enacted.

Of course: Brexit and Covid have taken a lot of government and parliamentary time, as have Afghanistan and Ukraine.

But.

At this mid-term moment, a government with a large working majority should be raring to go.

Yet it is not.

It a government that cannot even be confident to block or amend a reference to the privileges committee about the Prime Minister.

As Norman Lamont once said of then Prime Minister John Major, we have a government in office but not in power.

And that was when Major government had a very small majority, not the working majority of nearly eighty of Boris Johnson.

So this could be a significant Queen’s Speech – but its true significance may be about what it does not contain, rather than what it does.

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Along with Fake News and Fake Law, we have Fake Policy

20th April 2022

A ‘policy’ can be understood as a means to an end.

In a political context, a policy is the means by which various elements of the state can be used to achieve an outcome that would not be achieved, but for that policy.

Those elements can be ‘hard’ – for example, the use of legal prohibitions or coercive sanctions.

And other elements can be ‘soft’ – such as budget allocation and funding, administrative priority, the issuing of guidance, or the exercise of leadership.

But whatever combination of elements, the usual notion is that a policy is there to do something in practical terms – to have an ‘in real life’ (IRL) effect.

And then…

…and then we have the ‘policies’ of our current home secretary.

Of course, the home secretary is not the only minister to make announcements of policies which were not really intended to ever have effect, so as to ‘play well’ with the media or voters.

But it is difficult to think of a politician so adept at promoting such fake policies.

Take the Rwanda proposal (which has already featured on this blog).

A moment’s thought will indicate to any sensible person that the policy makes no sense IRL.

For example: that the proposal is for only some but not all of the asylum seekers to be transported onto Rwanda does not and cannot ‘break’ any ‘business model’.

The traffickers will instead just adjust their model so as to focus on those who are less likely to be moved on.

This is a point so bleedingly obvious that even the former home secretary and prime minister Theresa May – who promoted the vile ‘hostile environment’ policy – can see that it will not work.

Even Theresa May.

But.

The Rwanda proposal is not being promoted because it will work – or is capable of working.

The home secretary even admitted in formal correspondence published on the government’s own website that there is no evidence that the policy will work to deter anyone.

The proposal is there as a thing in itself – to rally illiberal supporters and ‘to own the libs’.

In the event this policy ever gets implemented, this fake quality will still be true as to its essence.

It is not a policy in any practical or meaningful sense – it is a signal.

And signals something positive or negative, depending on one’s values.

The publicity, like the cruelty, is the point.

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What the Home Secretary’s Ministerial Direction on Rwanda signifies – and what it does not signify

18th April 2022

The home secretary has issued ‘a ministerial direction’ for her proposal for a ‘migration and economic development partnership’ with Rwanda for the processing of asylum claims.

Such a direction is significant – but it is also important to realise what it does not signify.

The direction by itself does not mean that the proposal is wrong, or will not work, or is unlawful.

What it does mean is that there is sufficient concern within the home office that the most senior official wants Priti Patel to own the decision to go ahead with it.

And this is worth exploring.

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The partnership proposal was published last (Maundy) Thursday – which is odd, given that parliament was not sitting and we are around the time of the start of the central government ‘purdah’ for the local election campaigns.

Also published was a memorandum of understanding (MoU) with Rwanda.

In general terms, an MoU is a document that is supposed to impress you as as being effective and formal, but is not actually effective nor formal.

A political (and legal) sleight of hand (SoH).

And followers of this blog will enjoy the wording of paragraph 2.2 of the MoU:

“2.2 For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.”

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So that was (Maundy) Thursday.

On (Easter) Saturday, in the late afternoon, two letters were published by the government.

These letters were dated 13 April 2022, that is the Wednesday before the proposal and the MoU were published on the Thursday.

The first letter was from the most senior civil servant at the home office.

He was insisting on a ministerial direction.

Why?

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To answer that question we need to understand government policy on ‘managing public money’.

This policy is not the sort of partisan policy which politicians announce or publish in a manifesto.

It is instead the sort of policy which any government has, regardless of which part is in power.

And within each department the most senior official – in this case the permanent secretary – is the ‘accounting officer’ responsible for ensuring the policy is complied with.

When I was a government lawyer fifteen years ago, it was known as ‘VFM’ – value for money.

Part of the ‘managing public money’ policy provides:

The fine folk at the Institute of Government have provided this excellent explainer on ministerial directions which you should now read.

And this is the government’s own page for such directions.

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Now we go back to the permanent secretary’s letter.

You will see the first three paragraphs set out his understanding of the policy and what it is seeking to achieve – and this is set out in positive terms to which the home secretary herself cannot object.

The fourth paragraph then sets out his role as the accounting officer, and the fifth paragraph sets out the extent to which he sees there is no problem with the Rwanda proposal (emphasis added):

“The Accounting Officer advice that I have received comprises a rigorous assessment of the regularity, propriety, feasibility and value for money of this policy, drawing on legal, policy and operational expertise.  I have satisfied myself that it is regular, proper and feasible for this policy to proceed. We have incorporated learning from Windrush in developing this policy and the plans for its implementation.”

So, according to the official it is generally “regular, proper and feasible” for the proposal to proceed.

But.

There is something about which he as accounting officer is not satisfied, and this is set out out in the next paragraphs (which I have separated out for flow):

“However, this advice highlights the uncertainty surrounding the value for money of the proposal.

“I recognise that, despite the high cost of this policy, there are potentially significant savings to be realised from deterring people entering the UK illegally.

“Value for money of the policy is dependent on it being effective as a deterrent.

“Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money.

I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect significant enough to make the policy value for money.

“This does not mean that the MEDP cannot have the appropriate deterrent effect; just that it there is not sufficient evidence for me to conclude that it will.”

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The proposal has a “high cost” – but there is no sufficient evidence that the high cost will be offset by savings from it having any deterrent effect.

The evidence for such an effect is not only uncertain but “highly uncertain”.

He therefore cannot sign off on the policy as accounting officer.

He instead needs to escalate it to the minister to sign off personally.

And so (again broken up for flow):

“Therefore, I will require your written instruction to proceed.

“I consider it is entirely appropriate for you to make a judgement to proceed in the light of the illegal migration challenge the country is facing.

“I will of course follow this direction and ensure the Department continues to support the implementation of the policy to the very best of our abilities.

“Should you issue a direction, I am required to copy all relevant papers to the Comptroller and Auditor General (who will inform the Public Accounts Committee) and the Treasury Officer of Accounts.

“I anticipate publishing our exchange of direction letters as early as practicable.”

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So this is not any usurpation of ministerial responsibility and democratic control, but a reinforcement of the priority of minister over officials.

The minister will get their way – but they have to take the decision themselves.

And so the home secretary replied, giving the direction.

Her letter is also worth looking at – though this time for what it does not say.

Her letter does not engage with the value for money points but sidesteps them (again broken for flow):

“While we understand it is not possible for HMG to accurately model the deterrent effect from day one, together with Rwanda, we are confident this policy is our best chance at producing that effect.

“It is only by introducing new incentives and effective deterrents into the system, as our international partners like Denmark, Greece, and Australia have succeeded in doing, that we can take on the criminal gangs facilitating illegal entry and break their lethal business model.

“I recognise your assessment on the immediate value for money aspect of this proposal.

“However, I note that without action, costs will continue to rise, lives will continue to be lost, and that together we have introduced safeguards into our agreement to protect taxpayer funding.

“And while accepting the constraints of the accounting officer framework set out by HM Treasury, I also think there are credible invest-to-save arguments in the long term.

[…]

…I also believe there is an imperative to act now to mitigate the impact on staff wellbeing as well as departmental operational and financial pressures in the longer term.

“It would therefore be imprudent in my view, as Home Secretary, to allow the absence of quantifiable and dynamic modelling – which is inevitable when developing a response to global crises influenced by so many geopolitical factors such as climate change, war and conflict –– to delay delivery of a policy that we believe will reduce illegal migration, save lives, and ultimately break the business model of the smuggling gangs.

“I am therefore formally directing you as Accounting Officer to take forward this scheme with immediate effect, managing the identified risks as best you can.”

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For the home secretary, the lack of sufficient evidence of any deterrent effect does not matter.

She believes the Rwanda proposal will work, and so it shall be taken forward.

She is confident that in the longer-term there will be value for money, and – in any case – modelling is not easy for this sort of things.

Her decision; her call.

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Of course, one should be wary of taking documents such as these two exchanged letters seriously at face value.

Such exchanges can be choreographed and it sometimes (though not here one suspects, given the disjoined nature of the reply) the same official will draft both letters – ‘sign here minister’.

It could be that the request for a direction here is a manifestation of deeper unease within the home office at this proposal – and that such a request, framed in VFM terms, was the only way of signalling publicly this unease.

The bureaucratic equivalent of the blinking hostage.

On the other hand, the home office is certainly capable of nasty and expensive policies.

And the permanent secretary in his fifth paragraph goes out of his way to say it is “regular, proper and feasible for this policy to proceed”.

Who knows?

Perhaps the permanent secretary knew the value for money objection could not be gainsaid and that it would not look like he was criticising the merits of the proposal.

Perhaps, perhaps, perhaps.

We do not know the realities behind the scenes.

The request for a direction is significant – but what it signifies generally is not clear.

But what we do know from this exchange of letters is that on the very eve of the publication of the proposal, the most senior official in the home office said that there was not sufficient evidence that the proposal would have any deterrent effect, and in response to this the home secretary could not provide any such evidence but wanted to go ahead with the policy anyway.

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Thank you for reading – and please support this blog.

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Two reasons why today’s ‘Reclaim these Streets’ high court decision is significant

11th March 2022

The ‘Reclaim these Streets’ decision was handed down by the High Court today.

In a welcome judgment, it was held by the High Court that the Metropolitan Police had acted unlawfully in respect of blanket banning a vigil during lockdown.

The ruling is detailed and thorough, but on the first reading there are two points that seem worth making.

First, the court placed the police decision-making under anxious scrutiny.

This was instead of the court’s usual deference to police decision making – where the long arm of the law is kept at more than arm’s length.

This is refreshing approach instead of the more familiar nodding-along by judges at police conduct.

Second, and just as refreshing, the court took the legal right to freedom of expression  – under Article 10 of the ECHR – seriously.

This was rather than the common lip-service paid by judges – who invariably mention free expression rights only to allow them to be interfered with.

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This must have been a challenging case to bring, to prepare for and to argue, and so there should be considerable credit for the applicants and their legal team for doing so.

Indeed – in getting the court to overcome its traditional deference to the police and in getting that court to then take free expression rights seriously – it is difficult to imagine a harder such case to fight and to win.

Well done to all who were involved.

https://twitter.com/davidallengreen/status/1502252517631135752

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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.

When both lawyers and the law are to blame

4th March 2022

Over at the Financial Times I have a piece on the extent to which lawyers are to be blamed for the abuse of English law by oligarchs.

https://twitter.com/davidallengreen/status/1499802380711387138

The article is, in turn, an elaboration of a post I did at this blog earlier this week – and it is a topic I have also tweeted about.

And one response has been to assume that my attempt to say that lawyers are not entirely to blame means that it is being suggested that lawyers are not at all to blame.

I have been careful to state – and explain – that lawyers are culpable, and that solicitors especially get to choose who they act for and in what way.

This is not good enough for some commenters – and I have been told that I am somehow making excuses.

But the problem is with any area of law that relates to dreadful things – oligarchs, torture, slavery, police brutality – there are both systems and individual agency.

This is an area this blog has explored before.

https://twitter.com/davidallengreen/status/1424059049360994307

And the focus on either systems or individual agency does not give you a full understanding of how the law and lawyers can enable such bad things to happen.

It has not been pleasant getting the ire that some want to dump on lawyers generally – but until and unless we can see that problems can be both systemic and personal, we are unlikely to resolve those problems.

And just jeering at lawyers, while satisfying, can be a substitute for meaningful reform of bad law and bad legal practice.

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

Realpolitik v universal war crimes jurisdiction?

2nd March 2022

Just a quick post tonight to ask a question to which I do not know the answer.

If – as a matter of Realpolitik – the invasion of Ukraine could be brought to an end by an amnesty for Putin, would that be a price worth paying?

Would it be worth excusing him from any war crimes prosecution just so as to bring the invasion to an end?

Or should there be an absolute insistence that, whatever happens, Putin must face a war crimes prosecution?

What do you think?

Realpolitik or universal war crimes jurisdiction?

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

The Rule of Law and the Colston Four – and why a jury acquittal shows a legal system working and not being undermined

 

The Colston Four defendants have been acquitted by a jury.

Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.

That contention is incorrect.

An acquittal is as much an aspect of the rule of law as a conviction.

Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.

The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.

It can be open to a jury to do this – and this informative Guardian article sets out many other examples.

A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.

This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.

Juries do not always get things right.

But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.

The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.

The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.

But that is not the ‘rule of law’ – it is something darker and nastier instead.

Others are fretting that the verdict creates a ‘precedent’.

It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.

Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.

The real upset is that a court heard the evidence and acquitted the defendants.

This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.

One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.

And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.

One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.

That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.

And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.

But juries are juries – they make mistakes, but they are independent of State prosecutors.

And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.

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Taking Human Rights Act reform seriously

14th December 2021

The best way to understand the politics and law of Human Rights Act reform is to realise there are two separate things going on.

The first is – with scare quotes – the debate over the “Human Rights Act” – where the Act’s opponents (and many supporters) overstate the importance of that symbolic legislation.

There are those with Very Strong Opinions about the Act who, when probed, cannot give any particulars for the opinions they hold and express.

And then there is – without scare quotes – the Human Rights Act 1998 – a mild and unambitious piece of legislation that generally has limited practical effect.

There is little connecting the heated debate over the “Human Rights Act” with the actual Human Rights Act.

And, as this blog has previously averred, if the Act had only been given a dull name like the Interpretation and Construction And Related Purposes (European Convention of Human Rights) Act, then a great deal of antipathy would not have existed.

The title of the legislation is just too provocative for some people, regardless of the substance.

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Today there were two significant developments about possible reform to the Act.

The first was the publication of a 580 page report of an independent review of the Human Rights Act commissioned by the government.

I have not yet read and digested this report, but the impression given is that the report does not urge fundamental changes to the Act.

The second development was the Ministry of Justice launching a consultation into the Act, with a return date of March 2022.

My initial impression is that the consultation is because the government may not have got the recommendations it wanted from the independent review and so is going to ‘consult’ that it gets the responses it wants.

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Any legislation which flows from the consultation would presumably be for the 2022-23 session of parliament, which takes us to the run-up to the next general election.

This means that it is unlikely that Human Right Act reform will be done, as it should be, on a cross-party basis.

Instead any reforms to the Act will be done in an increasingly politicised context.

For the best understanding of the government’s approach, one should not go to anything the Lord Chancellor and Justice Secretary says, as he is unlikely to have mastered the detailed issues raised addresses in the independent report and the consultation paper.

The best insight into the government’s general approach is in this short article for the Law Society Gazette by the capable David Wolfson QC, the Ministry of Justice minister in the House of Lords.

Wolfson avers that there is a distinction to be made between the rights as set out in the convention (which are fine) and how they are interpreted by the European Court of Human Rights in Strasbourg.

He has nothing against the wording of the Convention.

Left to United Kingdom courts, he suggests, the Convention rights would and should be interpreted soundly.

It is not a bad argument, but there are problems.

For example, it will still be the Strasbourg court that will determine any petitions brought against the United Kingdom for any failure to protect Convention rights – and so all that may be created ultimately is delay and bureaucracy in the event of interpretative divergence

And the prospect of more cases directly before the Strasbourg court will not be welcomed by the security and intelligence services, who would rather have the current situation where most cases stay with nod-along British judges.

Another problem is the Good Friday Agreement, under which the European Convention on Human Rights (that is, the Strasbourg version) has to be directly enforceable in the local courts of Northern Ireland.

If Northern Irish complainants are not able to assert their Convention rights as they would be respected in Strasbourg, but only watered-down domestic versions, then there is the question whether the is a possible breach of the Good Friday Agreement.

These hard problems are not going to go away.

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One fundamental misconception in the debate about Human Rights Act – and the “Human Rights Act”  – is that the Very Strong Opinions of its opponents can be translated into actual legislative changes.

There have been several attempts since 2010 by Conservative politicians to reform the Act, with lots of stirring language about a British Bill of Rights.

They often also say they want to “modernise” the Act – though somehow this “modernisation” is about rejecting the Convention as a living instrument, which is rather contradictory if you think about it.

Reforming the actual Act – and not the Turnip Ghost that its opponents have conjured up to give themselves a scare – will be a long legislative slog, and for very little point.

So rare are cases that turn on Convention points alone that, even with the proposed tinkering, it is hard to imagine many of those exceptional cases actually being determined differently.

And you would think that Lord Chancellor and Justice Secretary – as head of a justice system in crisis and a prison system needing radical improvement – would not devote scarce ministerial time and departmental resources to such an exercise.

But that would be to take any of this seriously.

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The *real* licences to kill issued by the United Kingdom state

29th October 2021

What would be a ‘licence to kill’?

The word ‘licence’ is familiar – but is also important.

At law, a licence is not – say – a mere endorsement or an encouragement.

It is not really just a bare permission (which can be for something you are permitted to do anyway).

A licence is a permission to do a thing that otherwise would be unlawful – but for that licence.

It is, in effect, the get out of jail card – or at least a get out of any liability card, either criminal or civil.

So, for example, a licence will stop a person in another person’s field from being sued for trespass, or a software user from being sued for copyright infringement for using another proprietary software.

Or a licence will stop you from being prosecuted for driving a car on the public highway – or even for watching everyday programmes on an everyday television.

And so on.

Licences are the signifiers of the sheer extent of the prohibitions around us.

They are permissions to do things that are otherwise banned.

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A ‘licence to kill’ would be a permission to kill another person that otherwise would lead to the killer incurring criminal and/or civil liability for that killing.

In essence: to kill without legal consequence.

You may think that a ‘licence to kill’ is the fictional stuff of James Bond and other spy thrillers.

But, in legal fact, they exist in the law of the United Kingdom – and they are multiplying.

They are not formally called ‘licences to kill’, of course – and they are not numbered sequentially (as far as we know) – but they do exist.

Go over to my column this month at Prospect magazine to find out more.

(And please do click on the article, as it means a lot to me and to the magazine.)