Category: Human Rights and Civil Liberties

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

22nd September 2021

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

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

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

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

Is she right?

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

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

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

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

and

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

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

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

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

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

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

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

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

I am not so sure.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Was the ‘surveillance state’ a price worth paying?

 

30th August 2021

Over at the Foreign Affairs journal is this fascinating, well-argued article:

From a liberal perspective, there are parts of the piece that are both convincing – and disturbing.

For example, the author Thomas Hegghammer avers that not only is the west better resourced:

‘Western governments have also proved to be less scrupulous about preserving civil rights than many expected in the early years of the war on terrorism. When faced with security threats on their own soil, most Western states bent or broke their own rules and neglected to live up to their self-professed liberal ideals.’

The gist of this seems true – and what is disturbing for the liberal is that it may well have been a ‘price worth paying’.

Hegghammer amplifies this point in respect of privacy laws and the surveillance state:

‘The reason information technology empowers the state over time is that rebellion is a battle for information, and states can exploit new technology on a scale that small groups cannot. The computer allowed states to accumulate more information about their citizens, and the Internet enabled faster sharing of that information across institutions and countries. Gadgets such as the credit card terminal and the smartphone allowed authorities to peer deeper and deeper into people’s lives. I sometimes serve as an expert witness in terrorism trials and get to see what the police have collected on suspects. What I have learned is that once the surveillance state targets someone, that person no longer retains even a sliver of genuine privacy.’

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Hegghammer sets out that surveillance and the disregard for civil liberties are just one element of a general anti-terrorist strategy – alongside techniques, resources, intelligence, and the dynamics of the state-terrorist relationship.

And it is not clear whether it is an essential element.

Had Western governments and their citizens been more mindful (or to critics, precious) about their civil liberties, would it have meant that the other elements of anti-terrorism policy would not have worked so well?

And what would it have practically meant for Western governments to have been more ‘scrupulous about preserving civil rights than many expected in the early years of the war on terrorism’ rather than less?

Most liberals will accept that the state can do all sorts of things for the purpose of anti-terrorism, as long as it has a lawful basis and is subject to democratic and judicial supervision and the principle of proportionality, and it lasts no longer than necessary.

Would such requirements really have hindered the security services in their work?

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To a certain extent Hegghammer’s argument has a flavour of ‘just so’ story – there is less terrorism now than before, and so what happened between then and now must explain why there is less terrorism.

But that said: Hegghammer’s observation that the state now has access to online information and communications data that makes it difficult-to-impossible to use electronic devices, media and payments for the purposes of organised terrorism is compelling.

However: terrorism, like other forms of human cruelty, adapts.

It may well be that we have not ascertained or imagined how the next generation of terrorists will work out how to be cruel.

But in the meantime: we will still have the surveillance state – and no state voluntary surrenders its powers.

Perhaps that was – and will continue to be – the ‘price worth paying’.

The price was a high one, all the same.

**

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Whatever happened to ‘regime change’?

16th August 2021

Once upon a time geopolitics seemed so much easier.

As Christopher Hitchens commented back in 2001, after 9/11:

‘The Taliban will soon be history. Al-Qaida will take longer. There will be other mutants to fight. But if, as the peaceniks like to moan, more Bin Ladens will spring up to take his place, I can offer this assurance: should that be the case, there are many many more who will also spring up to kill him all over again.’

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I was one of those who nodded-along with Hitchens at the time, but I quickly realised the reality of ‘regime change’ did not correspond to what was said in sterling newspaper columns and comment pieces.

And by the time of the Iraq invasion (with which I did not nod-along) it was plain that no actual thought was going into what happened next in any of these adventures.

Now, twenty years after the invasion of Afghanistan, the west are retreating in circumstances which show that there was never any practical, sustainable plan for ‘regime change’.

Indeed, instead of a changed regime in Afghanistan, we have a regime resumed.

And the full resumption only took a day, after some twenty years of occupation.

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Back in 2017, at the Financial Times, I put the calls for ‘regime change’ together with other simple notions from the first part of this century, as part of a general politics of easy answers:

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I remember as a United Kingdom government lawyer around 2003/4 being asked to help on a commercial procurement matter involving the Coalition Provisional Authority in Iraq.

I did not have much idea what I was doing, though I did my best – and it was soon obvious that nobody at the Coalition Provisional Authority knew what they were doing.

I remember thinking at the time that it is one thing to clap and cheer at ‘regime change’ but for it to happen in reality was quite different.

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This is not to argue absolutely against military interventions – either ‘liberal’ or otherwise.

What it is an argument against, however, is the notion that ‘regime changes’ are easy, or even effective.

Interventions are not political exorcisms, where the demons are expelled forever.

Instead, the notion of ‘regime change’ is a form of magical thinking.

And it always was.

**

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The depressing political theatre of the United Kingdom as Kabul falls

15th August 2021

On this depressing day of news from Afghanistan, we also get the sorry spectacle of domestic performative politics.

As Kabul falls – in minutes and hours, as opposed to the ‘thirty to ninety days’ of some recent expert commentary – the United Kingdom government is convening a COBR meeting and parliament is to be summoned.

The foreign secretary has even cut short his holiday:

Why did we not realise before that we could just ‘tell’ the Taliban to protect human rights?

Well, that’s them now told.

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All this political theatre – this post facto posturing – misdirects us from an even more depressing truth.

That the government of the United Kingdom – for all its post-Brexit claims – is internationally impotent here as in other areas, but it cannot accept this.

It would not have mattered much – if at all – if the COBR meeting and the recalled parliament had happened before the fall of Kabul.

Only the sequencing would have been different.

We have the illusion of focus, and the pretence of control and influence.

We tell ourselves and others that we can do something, and that we will do something.

But it is only for show.

While Kabul falls, in real time and in fast-forward.

Our government cannot admit its international irrelevance – not even to itself.

**

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Positive vs Normative Statements – You may not want to blame the lawyers but it remains a fact that lawyers facilitate(d) slavery, torture, imperialism, police brutality, and so on

8th August 2021

Today’s post is, in effect, a footnote to yesterday’s post on laws and systems – what connects slavery, torture, imperialism, police brutality and so on.

The reason for this post is that some commenters responded to yesterday’s post as if my primary purpose were to impose blame on lawyers for their role in the facilitation of slavery, torture, imperialism, police brutality and so on.

Lawyers were only doing their job, the responses went, and so it was rather unfair of me to blame them.

All they were doing was advising on the law, and that is what is lawyers do.

I was being unfair, the response averred.

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Such a protest is, in my view, to confuse positive and normative statements.

The existences of slavery, torture, imperialism, police brutality, and so on, in any organised society does – as a matter of positive fact – require the involvement of those who make and deal with laws.

This is simply because such things can only exist in an organised society if they are permitted – or at least recognised – by law.

And in modern societies, there is often a distinct profession for those who practise in laws: lawyers.

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Whether any lawyers – individually or collectively – should be regarded as culpable for recognising or permitting activities is a separate and distinct argument to the one advanced in yesterday’s post

There may, for example, be a ‘cab rank’ rule which obliged lawyers to make submissions to court that they personally did not agree with.

Or the world-view of the time and place may have meant that, say, slavery, torture, or imperialism were not morally contested – and so it may be that it would not be historically fair to regard the lawyers enabling such activities as being especially culpable.

But even taking such normative points at their highest, there remains the positive and undeniable fact.

That is the positive fact that slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because they are facilitated by those who deal with and practice in law.

And this remains true – even if we can excuse (or find excuses for) individual lawyers who participate(d) in recognising or permitting such activities.

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Laws and systems – what connects slavery, torture, imperialism, police brutality and so on

7th August 2021

This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.

One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).

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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.

An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.

That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.

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For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.

Either such practices will not be prohibited or such practices will be positively facilitated.

In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.

And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.

Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.

And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.

A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.

None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.

Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.

And such liberal and progressive laws and lawyers should be celebrated.

But.

It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.

And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.

All that liberal and progressive  laws and lawyers are taking away are what other laws and lawyers provided in the first place.

**

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Lord Reed’s signal: the politics of the Supreme Court (continued)

5th August 2021

Over at Prospect there is a wise and informative article on the supreme court of the United Kingdom.

The piece is by the law professor and former adviser to house of lords committee Alexander Horne.

It makes the point well that the supreme court is taking a more conservative, restrictive approach to public law cases – those are the cases that concern the legality of actions by public bodies – especially when those concern policy.

If so, then there will – in turn – be less need for the current government to ‘reform’ judicial review, the usual means by which the courts deal with public law cases.

If so, this may be significant – at least in its effects.

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The supreme court in the United Kingdom – unlike its American counterpart – does not hear many judicial review cases.

This is not least because there is no codified constitution against which the courts can assess the legality of the actions of state actors.

This in turn means that there is not really a small-c conservative, small-l liberal division in the politics of the supreme court.

Almost all the cases heard by the supreme court do not concern judicial review.

That said, the cases which the court selects to hear and then give emphatic judgments will usually have a powerful effect on the courts below – well beyond the force of any binding legal precedent.

This is a signal that will be understood by – and probably influence – the judges whose day-to-day work involves public law cases and judicial reviews.

It will also be noted by the lawyers who specialise in bringing (or not bringing) certain cases.

In effect: because of the signal from Lord Reed’s supreme court, fewer judicial reviews involving policy will be brought – and of those brought, fewer are likely to succeed.

There will, of course, be hardy lawyers and even judges that will still seek to apply anxious scrutiny to cases involving policy questions.

But those judges and lawyers will soon be in the minority.

And this effect will have a practical impact far greater than could be achieved by bill before parliament.

The days of any expansive approach to dealing with the legality of policies in judicial review cases are coming to an end.

The supreme court seems to be signalling the retreat.

**

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Threats to doctors and nurses and lifeboat crews – and why laws and law enforcement are not enough

25th July 2021

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‘…we are indeed drifting into the arena of the unwell. Making an enemy of our own future.’

– Marwood, Withnail and I

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Every so often it seems that the culture wars are coming to an end, and then you get extraordinary things like this:

https://twitter.com/sbattrawden/status/1418984363304394762

A speaker tells a crowd in Trafalgar Square that doctors and nurses should be ‘hung’.

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People are abusing lifeboat crews.

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Doctors and nurses and lifeboat crews are perhaps the last individuals that would be insulted and threatened in a decent modern society.

Without any of the mirth of the Withnail and I film, we can echo the sentiment that our country is drifting (ever further) into area of the unwell.

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Those who defend such abuse may seek to say that it is only ‘freedom of speech’.

But no society has absolute free speech.

An immediate verbal threat of harm is not a protected speech act – just as forging a cheque or planning a robbery are not protected speech acts.

And dealing with threats to inflict hurt on other humans is what the law has, in part, always been about.

But to say a thing is against the law is not the same as saying the law would be effective in prohibiting such abuse.

Indeed, the laws as they stand would cover such utterances – and the law has not deterred the threats from being made.

And even if individuals were arrested and convicted, there is no reason to believe the nastiness of the culture wars would abate.

The ultimate issue here is not a public order problem with a neat legal solution.

The issue is cultural and political and social – and so only looking to the law would be an error.

There is a need for cultural and political and social leadership: for arguments to be won, and for behaviours to be discredited.

Laws and law enforcement will be part of that, of course, but they are not a complete answer, or close to it.

Once we are deep inside the arena of the unwell, there is no set of law suits or prosecutions with which we can bound free.

Those who threaten doctors and nurses and lifeboat crews should be prosecuted fully and fearlessly.

But such prosecutions would not make the problem go away.

Something deeper and more disturbing is afoot.

Brace, brace.

**

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Explaining the attack on judicial activism that never happened – three theories

22nd July 2021

The great theatre critic Kenneth Tynan said somewhere that any good theatre critic can describe what the the theatre of their day was doing – the challenge was to explain what the theatre of their day was not doing but could be doing, and why.

This is the same challenge for all commentators, including those of us who seek to explain what is happening – and not happening – with law and policy.

And, as this blog described yesterday, there one thing that is not happening is the government not making a full frontal attack on judicial review in the new courts  bill published yesterday.

(On this, see also Helen Mountfield QC at Prospect today.)

It is always weird when nothing happens when something is expected to happen.

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“Without venturing for Scrooge quite as hardily as this, I don’t mind calling on you to believe that he was ready for a good broad field of strange appearances, and that nothing between a baby and rhinoceros would have astonished him very much.

‘Now, being prepared for almost anything, he was not by any means prepared for nothing; and, consequently, when the Bell struck One, and no shape appeared, he was taken with a violent fit of trembling.’

– from A Christmas Carol by Charles Dickens

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Law and policy commentators were yesterday expectant of a rhinoceros, if not a baby.

So what was finally published – a mild piece of legislation – has given us a fit of trembling.

What have we missed?

And what can explain what happened?

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So far there are three broad theories.

The first is that this is a political false flag.

That the government has an illiberal plan – but for some reason is misdirecting us with this bill.

And indeed, as the eminent admiralty law jurist Gial Ackbar once averred, some things can be a trap.

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Could the ministry of justice really be planning to introduce a raft of amendments late in the passage of the bill, so as to force illiberal measures through?

One would hope not – and one expects ministry of justice officials and lawyers to have more dignity than their home office counterparts.

And – in general terms – bills often start off more contentious than they end, so it would be unusual for such a game of constitutional bait and switch.

That said, one should not let one’s laser field down: this government will seek to be illiberal if it can get away with it.

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If it is not a trap, there are two other possible broad explanations.

One is that put forward by this blog yesterday – which I will call the DAG theory, if only to distinguish me from Ackbar.

This theory is government-facing – and goes to the notion that there is (or was) actually a problem of judicial activism being a myth.

I first put this argument forward in my Prospect column last year, where I set out why there was a discrepancy between the (supposed) fears of the government (and its political and media supporters) and the reality of mundane administrative law decisions.

It would thereby not be a surprise that when the government came to actually legislate – rather than speechify – there was no real problem to solve with primary legislation.

The government had walked up a stair and passed a problem that was not there, and the problem was not there either yesterday, and indeed it had gone away.

If so, this is a similar to previous situations, where the government has sought to ‘reform’ the human rights act or to deal with ‘compensation culture’.

It is always difficult to make laws against turnip-ghosts.

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But there is a third theory, which you may find more plausible than either Ackbar’s or my own.

And that was put forward on Twitter by Alexander Horne.

Instead of my government-facing explanation, Horne argues that it is the policy of the courts that has changed.

And that because there is now no problem of judicial activism, it follows there is no need for a solution.

Horne makes good points.

There is certainly a shift in the supreme court under the new president Lord Reed – and Reed is, as this blog set out in a previous post, a judge who can write that judges should give the assessments of the home secretary more respect with a straight face.

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Where Horne and I agree is that there is currently no problem of judicial activism that needs solving – the difference between us is that I aver it was a turnip-ghost all along.

Whichever theory is correct – Ackbar, DAG or Horne – there will be some commentators and campaigners who will contend that even the two proposed reforms are too much, and that they must be opposed loudly and brashly, and deploying the language of constitutional conflict.

But a good advocate knows that one should choose one’s battles.

The government’s proposals should still have the benefit of anxious scrutiny – just in case Ackbar is correct.

But one should be wary that the language of fundamental opposition to the government be devalued, for if is wasted here then it will have less purchase when it is needed.

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A final word to the Judicial Power Project – a group with the strange view that the primary problem in the United Kingdom constitutional is judicial power and not the lack of checks and balances on either the executive or the legislature.

It would appear that the Judicial Power Project are underwhelmed with the reforms they have so long campaigned for.

You would need a heart of stone not to laugh.

**

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The Home Office wants to reform Official Secrets law by pretending journalism does not exist

Over at the Guardian there is an important article – which is also worth reading just for its byline

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A rare sighting in the wild of Duncans Campbell

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The article in turn refers to this government consultation document.

The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.

The concern primarily used to be about what could be done by means of espionage.

And this generally made sense, as the means of publication and broadcast were in the hands of the few.

Now the bigger threat is mass-publication to the world.

This is a particularly striking passage (which I have broken into paragraphs):

“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.

And there is already an offence in respect of unauthorised disclosure by third parties.

But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.

A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.

So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.

What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.

But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.

In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.

The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.

Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.

Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.

Journalism does not go away, just because you do not mention it and pretend it is not there.

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