Human Rights and Civil Liberties – Page 8

What now stands between a populist authoritarian government with a huge majority and a full scale assault on civil liberties and human rights?

18th March 2021

Earlier this week the house of commons passed the government’s illiberal Police, Crime, Sentencing, and Courts Bill with a ninety-six majority.

So given this high majority the obvious question is what would actually stop or hinder a populist and authoritarian government from seeking to pass primary legislation that would remove or undermine basic legal protections and rights?

This is not a trivial or academic question.

The usual ‘gatekeepers’ that would prevent a government from not even proposing such things are no longer in place.

For example, the offices of lord chancellor and attorney-general are occupied by politicians who happen to be lawyers but have no credentials in protecting either the rule of law or fundamental freedoms.

And we have a government heady with ‘will of the people’ rhetoric that has developed a taste for attacking or disregarding what checks and balances the constitution of the United Kingdom has to offer.

In constitutional theory, the next check – once legislation is proposed – is the house of commons.

But with such a large majority – and the tendency for even supposedly ‘libertarian’ government backbenchers to vote in accordance with the whip and accept limp front-bench assurances – there is no realistic way that the house of commons is any check or balance on this government.

And if the opposition do oppose – which cannot be assumed, given the official opposition’s habit of not opposing things for tactical and strategic reasons – then such opposition can and will be weaponised by hyper-partisan ministers and their media supporters.

Next there is the house of lords, where (fortunately) the government does not have an in-built majority.

And the house of lords can vote things down and pass amendments.

But.

When constitutional push comes to political shove, the house of lords will usually backdown once the house of commons has reaffirmed its support for a measure.

This is in part that the the house of lords has a, well, constitutional disability in respect of confronting the democratic house.

There will only be a few occasions where the house of lords will use its power to delay legislation under the parliament acts.

And that power is that: to delay.

A determined government, with the support of the house of commons, will get its legislative way in the end.

A government in these circumstances would not even need to resort to an ‘enabling act’ – as it would get through any desired illiberal legislation anyway.

There are a very few exceptions to this: such as a bill containing any provision to extend the maximum duration of a parliament beyond five years.

But otherwise: there is nothing that can ultimately stop an illiberal bill eventually becoming an act of parliament.

And then we come to the courts.

Here we have another problem.

Because of the doctrine of parliamentary supremacy there is nothing that the courts would be able to do – as long as the government has ensured that the statutory drafting is precise and tight.

The human rights act, for example, provides no legal basis for an act of parliament to be disapplied.

The judgments of the European court of human rights are not binding.

The European communities act, which did enable a court to disapply an act of parliament on certain grounds, is no longer part of domestic law.

‘Common law rights’ capable of frustrating an act of parliament exist only in undergraduate law student essays.

Even with the powers the courts do have, the government is seeking to limit access to judicial review by all possible means: in substantive law, by procedural restrictions, and by denying legal aid.

(And the courts have taken an illiberal turn anyway: and we now have a president of the supreme court, in an unanimous judgment, telling the court of appeal off for not according ‘respect’ to a home secretary’s assessments.)

Before the general election of December 2019 we had the unpleasant predicament of a government that was populist and authoritarian – but at least it did not have a parliamentary majority.

Now, by reason of that general election and its result, we have a government with the same illiberal instincts but with all the sheer legal force of parliamentary supremacy at their disposal.

That the opposition parties facilitated an early general election in December 2019 was a moment of political madness.

And now – until at least December 2024 – we have a government that is able with ease to get the house of commons to pass the most illiberal legislation – and there is ultimately nothing that either the house of lords or the courts can do – as long as the legislation is precise and tight.

Brace, brace.

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The problem of the dislocation between political language and policy substance

17th March 2021

The problem of political language not being tied firmly to particular meanings is not a new one:

‘From where Winston stood it was just possible to read, picked out on its white face in elegant lettering, the three slogans of the Party:

WAR IS PEACE

FREEDOM IS SLAVERY

IGNORANCE IS STRENGTH’

Indeed, it is no doubt a problem as old as political discourse itself.

But the fact that it is not a novelty does not make it any less irksome.

And nor does it mean that its instances should be left unremarked.

Currently there is a severe dislocation between political words and things.

Those ‘free speech warriors’ who decry ‘cancel culture’ often seem at ease with a government putting forward legislation that is capable of prohibiting any form of effective protest.

There are also the ‘classical liberals’ who commend ‘free trade’ who are in support of Brexit, which is the biggest imposition of trade barriers on the United Kingdom in modern history – and has even led to a trade barrier down the Irish Sea.

And there are the champions of the liberties under Magna Carta and of ‘common law rights’ who also somehow support restrictions on access to the court for judicial review applications and sneer at imaginary activist judges.

Like a gear stick that has come loose, there seems no connection between the political phrases and the policy substance.

But the phrases are not meaningless – they still have purchase (else they would not be used).

The phrases are enough to get people to nod-along and to clap and cheer.

It is just that they are nodding-along and clapping and cheering when the actual policies then being adopted and implemented have the opposite effect.

Can anything be done?

An optimist will aver that mankind can only bear so much unreality – and that people will realise they have been taken in by follies and lies.

That, for example, Americans will realise that politicians who seek support to ‘make American great again’ have made America anything but.

Or that those who said they would ‘get Brexit done’ have instead placed the United Kingdom in a structure where Brexit will be a negotiation without end.

Or there will be a realisation that a government is seeking greater legal protections for statues than for actual human beings.

A pessimist will see the opposite – that the breakdown of traditional media and political structures (with traditional political parties and newspapers seeming quaint survivors from another age) – means that it will be harder to align words with meanings.

Meaning the dismal prospect of liberals and progressives having to also adopt such insincere approaches so as to counter and defeat the illiberals and authoritarians.

Whatever the solution, it needs to come rather quickly – at least in the United Kingdom – as the current illiberal and authoritarian government is in possession of a large parliamentary majority and is showing itself willing and able to push through illiberal and authoritarian laws and policies.

While pretending to itself and others that it has ‘libertarian instincts’.

And so it may not just be the gear stick which has come loose but also the brakes as well.

Brace, brace.

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The proposed new clause 59 offence of ‘intentionally or recklessly causing public nuisance’

15th March 2021

There is currently a bill before parliament that will, among other things, create a new statutory offence of ‘public nuisance’.

This new offence – as currently set out in the bill – is itself causing annoyance and distress.

Why is it being proposed?

And what should parliament do about it?

Like a lamp in Aladdin – it is a new offence for an old one.

If the new offence is enacted then the current ‘common law’ (that is, non-statutory) offence of public nuisance will be abolished.

The current offence is ill-defined and rarely used – and it has been the subject of 2015 reform proposals from the Law Commission – see here.

(Of course, the fact that the Law Commission proposed reform in 2015 is not the reason why the home office have chosen to propose changes in 2021.)

On the face of it, reform and simplification are good things.

Who could possibly oppose something as laudable as reform and simplification?

And the Law Commission does have a point – the current law is somewhat vague and archaic.

The current law is usually stated as:

‘A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.’

The bill before parliament proposes that old offence to be replaced by this:

As you will see there are elements of the current offence copied over to the new offence – and that although this is an exercise in ‘simplification’ it also happens to be rather longer.

Words like ‘annoyance’ are added.

But the new offence has not plucked the word ‘annoyance’ out of the air: annoyance can be a component of the current offence, and it has featured in case law.

The word ‘annoy’ (and its variants) is mentioned thirty-seven times in the Law Commission report.

The Law Commission summarises their view as (at paragraph 3.12):

‘One question is the nature of the right or interest which public nuisance seeks to protect. In our view, its proper use is to protect the rights of members of the public to enjoy public spaces and use public rights (such as rights of way) without danger, interference or annoyance.’

Whatever ills can be blamed on the home secretary and the home office, the content of this proposed provision is not entirely of their creation.

But.

Each and every piece of legislation needs to be scrutinised on its own terms – and neither parliamentarians nor the public should just nod-along because the magic words ‘reform’ and ‘simplification’ are invoked.

Never trust the home office.

And if one looks through clause 59 carefully and trace through how it works, it is potentially a chilling and illiberal provision.

For example (with emphasis added):

‘A person commits an offence if— (a) the person— (i) does an act […] [which](b) the person’s act or omission […] (ii) obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and (c) the person […] is reckless as to whether it will have such a consequence. […] (2) For the purposes of subsection (1) an act or omission causes serious harm to a person if, as a result, the person […] (c) suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity, or (d) is put at risk of suffering anything mentioned […].

The offence is thereby made out not if a person is caused ‘serious annoyance’ but only if there is a ‘risk’ of them suffering it.

And there does not need need to be any directed intention – mere recklessness will suffice.

The maximum sentence for simply putting someone ‘at risk of suffering’ serious annoyance is imprisonment for a term not exceeding ten years.

Of course, maximum sentences are maximum sentences, and in practice the penalties will be lower.

Yet, the creation of such an offence in these terms will have a knock-on effects on the powers of police to arrest and to set conditions.

And it is in the day-to-day exercises of such powers by the police that the real chill of any offence is most keenly felt – and not the ultimate sentencing power of a court.

This provision and other provisions in the bill before parliament have the potential to greatly restrict the rights of individuals to protest – or even go about their everyday activities.

As such, such provisions should receive the anxious scrutiny of parliamentarians.

Despite the Law Commission origins of the proposed reform – there may be plenty here that the home office have added – and for various illiberal reasons.

Members of parliament are not there to nod-along – and this particular proposal should not just be nodded-through.

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Under the hood: how the United Kingdom state authorises people to commit criminal offences and then protects them from prosecution

12th March 2021

A recent court of appeal case has provided an insight into how the United Kingdom state both authorises people to commit criminal offences and then protects them from prosecution.

To show how this is done is not necessarily to condemn – or endorse – such governmental practices.

You may well believe that it is right that in certain covert operations those acting on behalf of the state should be able – as part of their cover – be able to break both the criminal and civil law for the greater good.

Or you may believe it should not be legally possible and that such things have the effect of placing state agents above the law.

In either case there is value in understanding just how it is done.

The starting point is to know – in general terms – about the two-stage ‘code’ test for bringing criminal prosecutions.

The first stage is to determine whether there is sufficient evidence against a defendant – this is called the evidential test.

The second test – treated as a routine formality in most every-day cases – is whether, distinct from the evidential test, there is a public interest in a prosecution – this is called the public interest test.

The notion is that there is a presumption that a prosecution is in the public interest unless there is a reason why such a prosecution was not in the public interest.

And it is at this second stage that state-authorised criminals are protected from prosecution.

But it is important to note that this protection is not a legal immunity.

Oh no, not at all, definitely not, how could you think such a thing?

The contention is that because in theory a prosecution can still occur then state agents are not technically above the law.

And placing state agents above the law would be a bad thing, and such a bad thing would never happen.

An authorisation for a state agent to break the law does not confer immunity from prosecution – it instead provides a factor which a prosecutor takes into account when making the decision whether a prosecution is in the public interest or not.

In this elaborate – and for some, artificial – form the state has both its cake and a file inside it.

State agents are protected from prosecutions for their criminal acts – but are not given immunity.

It is just that the prosecutions will not happen.

The court of appeal case is the latest (and perhaps last) stage in an important public interest case which, among other public benefits, has led to the disclosure of hitherto secret guidance on authorising state agents to commit criminal effects.

The judgment at paragraph 14 even published a redacted version of the guidance.

One paragraph of that guidance describes the legal effect and consequences of an authorisation (which I break up into smaller paragraphs for flow):

‘9. An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution.

‘Rather, the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities.

‘In particular, the authorisation process and associated records may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.

‘Accordingly, any such authorisation should, on its face, clearly establish that the criteria for authorisation are met, in terms which will be readily understood by a prosecutor.

To a certain extent the court of appeal case is of historic interest, because the government has now legislated to place part of this system on a statutory basis.

In the grand tradition of giving important legislation complicated and forgettable names, this is the Covert Human Intelligence Sources (Criminal Conduct) Act 2021.

This inserts the glamorous-sounding ‘section 29B – Covert human intelligence sources – criminal conduct authorisations’ into the Regulation of Investigatory Powers Act 2000, including this definition:

‘A “criminal conduct authorisation” is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’

You will note – perhaps worryingly – that there is no limit on what criminal actions may be authorised.

And here on should bear in mind the circumstances of the murder of Pat Finucane.

(And those circumstances explain why the Pat Finucane Centre were one of the groups bringing the legal challenge.)

On the face of it: murder and other serious criminal offences can be authorised by the state: there is no express limit.

But, of course, such things would never happen.

Ahem.

Paragraph 113 of the judgment also reveals something interesting:

‘The undisputed evidence generally was that the Security Service works closely with the police in counter-terrorism operations. The evidence also reveals that there is, for example, a Memorandum of Understanding between the Security Service, the police and the Counter Terrorism Division of the Crown Prosecution Service.’

This memorandum of understanding, of course, does not seem to be in the public domain.

As a ‘memorandum of understanding’ this would be a formal, legal-looking document – complete with pompous earnest language and paragraph numbers – but it is as much an imposter as any covert agent.

The purpose of a memorandum of understanding between government entities is to have the effect of a binding agreement – but without any of the inconveniences of it actually being a legal instrument, such as transparency.

There are memorandums of understanding all over the state (and between the United Kingdom and other states) – many of which are secret – but all of which are crucial in the conduct of government and public affairs.

The court of appeal’s helpful mention of the existence of this memorandum of understanding tells us how – as a matter of process – the authorisations are in practice converted into decisions not to prosecute.

Again: you may take the view that all this is not something to worry about and that government is doing what it has to do so as to keep us all safe.

Nothing in this post should be taken to gainsay such an entirely valid view.

The purpose of this post is to use information in the public domain so as to show how the state goes about doing what it does.

And there is even a reason to welcome the 2021 act even if one is a liberal or progressive.

The more of what the state does that is placed on a public statutory basis the better in any democratic society that values the rule of law.

So although the various public interest groups failed in their appeal, their dogged-determined litigation has led to certain things becoming public knowledge and perhaps being placed on a statutory footing that were not public knowledge before.

Just because some things should be covert it does not mean all things have to be covert.

And there is not a good reason why the ways and means by which the state authorises criminal conduct and then protects its agents from prosecution should not be in public domain – and in a democratic society that values the rule of law there is a good reason why it should be.

EDIT

The first version of this post had a mention of the Criminal Injuries Compensation Scheme – but the point I made now appears to be incorrect – so I have deleted that section so I can consider it again.

Apologies.

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Law and policy after Trump and Brexit: what happens if hyper-partisanship and populist nationalist authoritarianism does not fade away?

6th March 2021

As the year 2016 recedes there will be a temptation to think that the politics of 2016 will eventually recede too.

Things come and go, and human affairs often move in circles – a period of illiberalism will surely be followed, soon enough, by a liberal spring.

The days will start getting lighter, and so on.

But what if that does not happen – and the days stay just as dark, and perhaps get even darker.

What if Trump and Brexit were not low-points but preludes?

Such have been the various social, economic, technological and media dislocations of the last couple of decades, there is no particular reason to believe that we will have a happy return to the certainties of a previous political order.

In the United Kingdom, for example, we still have the government gaming legality and threatening – again – to break the law to the claps and cheers of the easily impressed.

In the United States, Trump may have (temporarily) gone – but Trumpism certainly has not.

Certain politicians know that appealing to and motivating a particular illiberal constituency will be sufficient to keep them in or close to power.

And this sort of politics will mean that constitutional norms will continue to be contested and politicised.

If this dismal prospect is in the offing, then what is there to do from a liberal constitutionalist perspective?

From the point of view that there is a balance between the rights of an individual and the powers of the state, and that each element of the state – and especially the executive – should be subject to checks and balances.

What should one do if things do not, eventually, settle down?

This is a serious problem – as liberal constitutionalism is not well suited to hyper-partisanship.

Liberal constitutionalists who react with outrage or despair are the ‘owned libs’ whose adverse reactions are validation of the provocations.

And those who seek to avoid confrontation run the unpleasant risks of quietism.

Perhaps, as one Victorian politician put it: not all problems have solutions.

Perhaps it is now the lot of liberal constitutionalists just to try to protect what they can in the face of illiberal onslaught.

As this blog contended back on new year’s eve, there is a public good in pointing out that things are wrong, and in explaining how and why those things are wrong.

That is: in describing the world that is passing away.

It is a depressing predicament.

All this said, there is some scope for optimism.

Even taking Brexit and Trump at their highest, both were checked by constitutionalism.

There was no hard Brexit – and the two Miller cases and the Benn Act ensured that there was both a withdrawal agreement and a trade and cooperation agreement.

There was not a successful coup in the United States of America – the electoral college was not subverted.

Liberal constitutionalism has taken a substantial bashing in both the United Kingdom and the United States – as well as elsewhere – but it has not (yet) collapsed, and indeed it has shown marked resilience.

Liberal constitutionalism is perhaps turning out to have been stronger than those of us at the time realised.

And so there is still a role for liberal constitutionalism in the post-Brexit and post-Trump age.

The huffs and puffs have not (yet) blown the liberal constitutionalist house down.

We may be in in a post-Brexit and post-Trump age – but we not (yet) in a post-liberal and pst-constitutionalist age.

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What lawyers can be blamed for – and what they cannot be blamed for

4th March 2021

My column this month at Prospect magazine is about lawyers and what they can and cannot be blamed for.

Please click here and read the column.

(Please do – the more clicks I get for commissioned pieces like that column, the more I can provide commentary on this blog for you and others.)

The rest of this post below amplifies a couple of points made in that column.

The view I put forward in the column is neither of the usual ‘takes’ on this problem of the ages.

The first usual take is blame the lawyers for anything and everything about the law and what it does and does not do to individuals.

The second usual take – equal and opposite to the first take – is to deny that fault is ever with the lawyers and to aver that any fault is instead with the clients, or the courts, or something else.

This latter approach is sometimes the deft go-to response for lawyers seeking to evade any censure or criticism for their work.

There will be those – perhaps reading the column or this post – who are happy with either of these views and do not wish to have those settled precious positions disturbed.

My column and this post is not for them.

The unpleasant truth is that the suffering of number of people in real life depends on just how good a lawyer is at their job.

Take for example the following cases:

lawyers in the United States providing the best possible legal cover for torture and the infliction of other inhumane treatment;
lawyers again in the United States appealing court decisions so as to ensure that a prisoner is killed before there is a possibility of clemency under a newly elected president;
lawyers acting for pharmaceutical companies enforcing patents so that treatments are practically unavailable for those in pain;
lawyers acting for insurance companies using obscure tort case law on causation so as to avoid pay-outs to those requiring compensation for medical fees,

and so on.

This is, of course, not new.

Without even affirming Godwin’s Law, one can point to the English lawyers who long provided legal cover for the slave trade.

https://twitter.com/davidallengreen/status/1271696745836228608

As a direct consequence of the dedication, skill and ability of the lawyers involved, there is (and has been) more human misery in this world than otherwise would be the case.

Often the excuse offered for lawyer culpability is an appeal to the judge-fairy.

This is to say that it is for a court to to determine guilt or innocence, or civil liability or no liability, and not the lawyers.

But very few cases get to court where the judge-fairy can wave a magic wand (or magic gavel, if not in England) and put everything right and just.

Almost all civil cases end in settlement.

And, if a lawyer has done their job well at early stages of a process, nobody will bring a civil claim any way, regardless of loss and damage.

Some people will plead guilty in criminal cases rather than run the risk of the consequences of a guilty verdict, regardless of their actual innocence, because of the case against them or the prosecutors employed.

And others will, because of solid legal advice, be always at least one step away from any criminal culpability.

So, no: invoking the judge-fairy is not enough.

The craft and practice of law is often in avoiding anything ever getting close to the uncertainty of a court hearing.

But.

As I set out over at Prospect lawyers may be to blame for many things, but they are not (usually) to blame for the laws.

Lawyers and their clients can only get away with what the law – both in terms of substance and procedure – allow them to do so.

And it is often a public benefit – counter-intuitively – that those with power have good legal advice rather than bad legal advice or indeed no legal advice.

For those with power will still use that power anyway.

Perhaps this view is just to replace the judge-fairy for a legislature-fairy.

Maybe.

But it was so telling when Rudolph Giuliani could not bring himself to mislead the court for the benefit of his client Donald Trump and allege fraud.

Even Giuliani had to act within the boundaries set by legal and professional rules.

Even Giuliani.

And in certain circumstances lawyers can even be excused their clients.

In England and Wales, as is well-known, barristers follow a cab-rank rule for cases before domestic courts (though this rule does not cover their often lucrative appearances before non-domestic courts).

This cab-rank rule, in turn, is an application of a more general approach of the law to those who provide(d) certain key services – another example is the law of common carriage and the rules that oblige(d) those who kept inns, toll-roads, ferries, bridges, and so on, to provide, in principle, a general service to all-comers.

The cab-rank rule is thereby a public good.

It ensures that everyone is entitled, in principle, to the same standard of advocacy and representation.

Yet what is less well-known is that the majority of lawyers in England and Wales – solicitors – are not under the cab-rank rule, and so can pick-and-choose clients and areas of law.

But even solicitors (of whom I am one) cannot be blamed for the law on which they advise.

Lawyers can be blamed for many things – perhaps far more than many lawyers would like to admit – but they cannot be blamed for the law.

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How the power of the home secretary to deprive a person of their United Kingdom citizenship is creating a second class of United Kingdom citizens from immigrant families

3rd March 2021

Despite modern political discourse being dominated by demands of what the ‘state’ should and should not do, there is often little in practice that ministers can do towards their political objectives.

Laws may be passed that may or may not have wanted effects; revenues can be raised and resources allocated that may or may not have any desired impact; international agreements may be made – or broken – that may or may not have certain effects; speeches can be made, and lines spun.

But a good deal of this activity and inactivity is at least one step removed from ensuring any real social and economic change (or lack of change), for government and administration is not an exact science.

And for anything that actually affect the rights of individuals, there would then be the pesky courts with their activist judges and scoundrel lawyers.

Over the last decade, however, one government department realised there were things it could do.

The home office has hit upon the one area of policy where it can make decisions that have direct social and economic consequences, but in a largely law-free way.

The home office could take people’s citizenship and residency rights away.

Certain manifestations of this general policy approach can be seen with the Windrush scandal and in the deportation of those with certain criminal convictions.

And so on.

Just as important as these executive actions, of course, was the threat of such executive actions.

This was not an accident – it was the design of the policy.

That policy was the ‘hostile environment’.

As the former home secretary Theresa May said candidly in a 2012 interview:

“The aim is to create here in Britain a really hostile environment for illegal migration.”

Billboards and signs on vans are one thing, but ready and easy use of executive powers are another.

And the home office – like any addict – began to use this legal power of international displacement more and more.

The home office could do things – and (more-or-less) get away with them.

The next step from stripping people of any residency rights they may have was to deprive them, when possible, of their citizenship rights.

From removing illegal immigrants, to removing those who were from immigrant families but were in the United Kingdom lawfully and indeed were citizens of the United Kingdom.

And so this is what they did.

The outstanding Free Movement blog has compiled this table:

According to Colin Yeo, in this detailed and informative survey of the use of the power to deprive a United Kingdom citizen of their citizenship:

‘until quite recently, the power to deprive a person of their British citizenship on the grounds of behaviour was almost moribund, having been used against perhaps a handful of Russian spies…in practice, ‘deprivation powers were not used at all between 1973 and 2002’.

The cases mentioned by Yeo will show why many might not mind many of the deprivations – unpleasant individuals who have done highly unpleasant things.

Many would even clap and cheer and shout good riddance.

But each case is also an instance of simple executive power – a ministerial decision, rather than a prior judgment by a court or tribunal – that strips a person of their citizenship of the United Kingdom – even if that person was born a United Kingdom citizen.

Under section 40 of the British Nationality Act 1981 (as amended heavily over the years), the right of citizenship of a person is entirely at the satisfaction of the home secretary.

(See this blog’s post here.)

And once the home secretary is satisfied that you should lose your citizenship then the citizenship is lost, by instant operation of law.

The person affected may seek to appeal such a decision – but they do so from the position of no longer being a United Kingdom citizen.

The decision takes effect before – sometimes long before – it can be considered by any court or tribunal.

This is what raw executive power looks like.

And the home office likes it this way.

Because of the international law in respect of ‘statelessness’ (which this blog set out here), this executive power is usually used (or should be used) only where the person affected already has the status at law of citizenship of another country.

This means it can be used against people with dual citizenship.

And this means it can be used most readily against those who are from first or second generation immigrant families.

So there are now two classes of United Kingdom citizen.

A first class of those who have no other nationality, and so against whom the home secretary cannot (or should not) use their power to deprive them of their citizenship of the United Kingdom.

And a second class of those who will also have another nationality and so can have their citizenship of the United Kingdom instantly removed at the satisfaction of the home secretary.

These second class citizens will primarily be comprised of those from first or second generation immigrant families.

This means, in turn, that many of those affected will tend to be those from black and minority ethnic backgrounds.

On this basis, the operation of this law and policy would be discriminatory against those from black and minority ethnic backgrounds.

The very structure of this law and policy would mean it cannot work any other way.

And so a citizen of the United Kingdom – born in the United Kingdom and with no personal relationship with any other country – can have their citizenship instantly removed by a government minister without any prior judicial step just because they are from an immigrant family.

And the home office likes it this way.

This post is part of a series of posts on the Shamima Begum case.

There is something wrong – very wrong – about the legal situation of Shamima Begum.

That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.

The legal case is, however, complex – at least on the face of it, with sets of legal proceedings and appeals that have resulted so far in a number of lengthy judgments by variously constituted courts.

So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.

Previous posts have included:

initial thoughts on the illiberal supreme court decision (here)
the parallel of the supreme court decision with the 1941 case of Liversidge v Anderson (here)
the legal power of the home secretary to deprive a person of United Kingdom citizenship (here)
statelessness and the law and the case of Shamima Begum (here)

Further posts will show how the home office and the courts dealt (and did not deal) with important issues in this case.

The purpose of this Begum series of posts is to promote the public understanding of law.

The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.

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The issue with vaccine certification – or ‘vaccine passports’ – is not that they are discriminatory – as all certification is discriminatory, if you think about it

1st March 2021

Over at the Financial Times I have a piece today on ‘vaccine passports’ – that is, a system of certification that a person has or has not had the coronavirus vaccine.

That article demonstrates my weakness as a commentator in the traditional media sense, as on this subject I do not happen to have strong views either way.

I do not have an ‘angle’ that will (conveniently) last from between 800 to 1100 words – no ultimate position that I am arguing for and articulating on your behalf for your claps and cheers.

Instead, on this policy (as on many others) I can only see difficulties – and difficult choices.

And these difficulties are, in turn, because of the very nature of certification.

All certification is discriminatory – that is its very point.

Certification enables (or should enable) a state of affairs to be asserted in a manner that then allows a decision-maker to make one decision instead of another.

That is: to discriminate.

The problem is not with discrimination in and of itself.

The problem is when that discrimination is unfair – either directly or indirectly.

Accordingly, it is not a complete answer to the proposal of any form of certification to dismiss it as discriminatory.

For all you are then saying is that a system of certification is acting, well, as a system of certification should.

The more important questions are whether that a policy of certificates would be reliable – and, if reliable, whether the benefits will outweigh the costs and whether it will not create unwanted inequalities, either directly or indirectly.

These are problematic things to consider – and for which there may not be an easy solutions – and in respect of which difficult choices will need to be made.

And to point such things out is a purpose of law and policy commentary.

Not all commentary is cheerleading for one position or the other.

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The legal power of the Home Secretary to deprive a person of United Kingdom citizenship – looking closely at the Begum case part 1

28th February 2021

There is something wrong – very wrong – about the legal situation of Shamima Begum.

That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.

So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.

Is the fault with the substantive law and general government policy? Or with the particular decisions made by home secretaries? Or with the lower courts and tribunals? Or with the higher appeal courts?

Of course, one easy answer is say ‘all of them’ – but even then: what is the allocation and distribution of wrongness in the system?

Previous posts on this blog on the case have put forward some initial impressions on the supreme court judgment of last week and, yesterday, compared the case in general terms with the 1941 decision of Liversidge v Anderson.

Today’s post is on the general subject of the power of the home secretary to deprive a person of British citizenship, subject to the (supposed) prohibition on rendering a person ‘stateless’.

The power of a home secretary to deprive a person of British citizenship is set out in section 40 of the British Nationality Act 1981.

Note, however, that this is not about powers that actually date back to 1981 – as this provision and the act generally have been heavily amended by successive governments.

This legal power, like many other powers that can be used illiberally, is a legal work-in-progress – constantly being tuned (if not finely) by home office lawyers by legislative amendment so as to make it ever-more difficult for a home secretary’s decisions to be checked and balanced.

The key power in the Begum case is at section 40(2):

‘The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.’

This is it – this is the deprivation power.

On the face of section 40(2) alone, any person can be deprived of citizenship not by a decision of an independent court or tribunal but at the simple discretion of a cabinet minister.

But.

There is then section 40(4), which provides:

‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.’

(The ‘he’ here also means ‘she’ under section 6 of the Interpretation Act 1978.)

On the face of it, section 40(4) would thereby prevent the deprivation power being used so as to render a person stateless.

Yet note, the deft use of the words ‘he is satisfied’.

Read the provision again without those three words to see the difference those words make: ‘The Secretary of State may not make an order under subsection (2) if […] that the order would make a person stateless.’

The direct legal test is thereby not whether a person is made stateless, but (again) the ‘satisfaction’ of the home secretary.

As we come to look more closely at the Begum case in particular, you will see what rides on words and phrases like this.

Turning now to the Begum case, we can now see the legal basis of the decision by the then home secretary Sajid Javid of 19th February 2019 (emphases added):

‘As the Secretary of State, I hereby give notice in accordance with section 40(5) of the British Nationality Act 1981 that I intend to have an order made to deprive you, Shamima Begum of your British citizenship under section 40(2) of the Act. This is because it would be conducive to the public good to do so.

‘The reason for the decision is that you are a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom. In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless.’

As you can see, the notice of 19th February 2019 ticks the boxes for both (1) the basic deprivation power and (2) avoiding the statelessness exception.

This determination being made by the home secretary – and given the evidence on which the home secretary purports to rely – the only immediate avenue of appeal of Begum was to the special immigration appeals commission.

The next post in this series of posts on the Begum case will set out the relevant law on ‘statelessness’.

Further posts will then show how the home office and the courts dealt (and did not deal) with important issues in this case.

The purpose of this Begum series of posts is to promote the public understanding of law.

The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.

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“In this country, amid the clash of arms, the laws are not silent…judges are no respecters” – the story of when a law lord in 1941 stood up for the rights of an individual against a home secretary, and what then happened to that law lord

27th February 2021

The illiberal and unanimous decision yesterday of the supreme court of the United Kingdom in the Shamima Begum case is reminiscent of another illiberal decision of the highest court, previously known as the appellate committee of the house of lords.

That case – which most lawyers will know and most non-lawyers will not – is Liversidge v Anderson.

This case dealt with the rights of the individual in respect of regulation 18B of the Defence (General) Regulations 1939.

That regulation provided:

‘If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.’

In other words: detention without trial at the discretion of the home secretary.

Of course, many would think such a dreadful thing would never happen in England, with our robust common law rights and so on.

For as even Winston Churchill said:

‘to cast a man into prison without formulating any charge known to the law is in the highest degree odious and forms the basis of all totalitarian regimes’.

(It is worth noting that ‘odious’ was quite the word for Churchill – see also his ‘fight them on the beaches’ speech: ‘Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail’.)

But although detention without trial was (supposedly) ‘in the highest degree odious’, the United Kingdom did it anyway.

And one of those detained was Robert Liversidge.

The detention order from the home secretary was as follows:

‘DETENTION ORDER.

‘Whereas I have reasonable cause to believe Jack Perlzweig alias Robert Liversidge to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him: Now, therefore, I, in pursuance of the power conferred on me by reg. 18B of the Defence (General) Regulations, 1939, hereby make the following order: I direct that the above-mentioned Jack Perlzweig alias Robert Liversidge be detained.

‘(Signed) John Anderson,

‘One of His Majesty’s Principal Secretaries of State’

No charge; no prosecution; no trial; no conviction; no sentence.

Just the opinion of the home secretary.

And so Liversidge brought a legal case against the then home secretary Sir John Anderson, and this was the case that reached the house of lords in 1941.

Liversidge, who averred he was falsely imprisoned, wanted to know the case against him.

But Viscount Maugham and the majority of the law lords were having none of Liversidge’s nonsense.

In a sequence of speeches that are rather quite remarkable the law lords – to use Lord Reed’s unfortunate phrase – accorded respect to the determination of the home secretary:

‘there is no appeal from the decision of the Secretary of State in these matters provided only that he acts in good faith’.

The appeal was dismissed, and Liversidge – sitting in Brixton prison – was ordered at the end of Maugham’s speech to pay the home secretary’s legal costs (though it is not clear whether this order was actually made).

But not all the law lords nodded-along.

Lord Atkin sat through the very same submissions in September 1941, and he came to a very different conclusion.

He gave a dissenting speech which contained this passage (which I here break into smaller paragraphs for flow):

‘I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.

‘Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850) 5 Ex 378 , cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman [1941] AC 378, 393 : “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”

In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.

‘It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

‘In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.

‘I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.

‘To recapitulate: The words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them.

‘They are used in the Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular.

Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.

‘I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’” (“Through the Looking Glass,” c. vi.)

‘After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.

‘If it be true, as, for the foregoing reasons, I am profoundly convinced it is, that the Home Secretary has not been given an unconditional authority to detain, the true decision in the [case] before us ought not to be difficult to make.’

Lord Atkin, 1941: ‘judges are no respecters of persons’

Lord Reed, 2021: ‘[the court of appeal] did not give the Home Secretary’s assessment the respect which it should have received’

Lord Atkin’s speech in 1941 did not go down well with his fellow judges.

Lord Atkin was cancelled.

As David Pannick details in his book Judges, the other law lords shunned Atkin.

Viscount Maugham, in an extraordinary step, even wrote a letter to the Times about the language used by his fellow law lord (the short house of lords debate on that letter is here.)

But Atkin was right.

As a later law lord, Lord Diplock said in a 1979 house of lords case:

‘For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.’

But that was no consolation to Liversidge detained in Brixton prison back in 1941.

Nor was it consolation to Atkin – for according to Pannick it was widely believed that Atkin never recovered from the hostility of his fellow judges before his death in 1944.

Perhaps in a few years a supreme court justice may suggest – perhaps cautiously in an extra-judicial lecture, or perhaps more confidently in an actual decision – that the court of appeal got the Begum case right, and the supreme court did not.

That will be no consolation to anyone either.

But as the 1941 case of Liversidge v Anderson shows, it is not the first time that the judges of the highest court – in the words of one of its greatest former members – ‘show themselves more executive minded than the executive’.

And it certainly will not be the last time they do this in respect of the rights of the individual in the face of the powers of a home secretary.

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Sources – Judges by David Pannick and In the highest degree odious: detention without trial in wartime Britain by A W Brian Simpson – and both books are highly recommended

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