Human Rights and Civil Liberties – Page 9

‘Not giving the Home Secretary’s assessment the respect that it deserves’ – some initial thoughts on the Shamima Begum decision of the Supreme Court of the United Kingdom

26th February 2021

This morning the Supreme Court of the United Kingdom handed down its decision in the appeal case of Shamima Begum.

The judgment is detailed and lengthy, dealing with three distinct appeals, and is 137 paragraphs long.

With a decision of this scope and complexity one can only form indicative impressions on the day it is made public.

The decision will take time to digest and to comprehend.

But.

That said, and with the proviso that immediate impressions can often be dispelled, here are some views from the perspective of a liberal commentator on law and policy.

The first impression comes from the decision being unanimous.

This is not a judgment where some justices with a more liberal perspective have their say and their more conservative counterparts say something else.

A basis for a judgment was found to which all supreme court justices who heard the case was content to put their names.

This is similar to what happened in the second Miller case – on the prorogation of parliament – and on the Heathrow expansion case.

Perhaps it is a mere coincidence – but the supreme court is at now at least in the habit of putting on a united front in cases that (can be said to) involve issues of high policy and the public interest – even if it is not a deliberate policy.

This is no doubt sensible – if the judicial element of the state is to check and balance another element of the state (or to not check or balance another element of the state) then it is better for it not to be seen as something on which senior judges disagree between themselves.

It also perhaps indicates that there is more going on behind the scenes in seeking to obtain unanimous judgments, rather than a laissez-faire attitude of just publishing what each judge thinks.

The second impression is that, as well as being unanimous, the judgment is executive minded.

For example, here is how the court of appeal described the background of Begum:

But in contrast, in the supreme court judgment these same personal details – such as where Begum was born – are expressly presented from the perspective of the home secretary’s desk:

What we know about Begum in the supreme court judgment is expressly framed as being the content of a submission before the home secretary.

We are not directly told Begum was born in the United Kingdom other than that this is an incidental detail in an assessment on national security.

For the details of the individual to be put in such terms in a judgment in respect of their rights is not wrong, but it is quite the tell.

The supreme court judgment also starts in a robust, no-nonsense way about the home secretary’s decisive action:

Nothing rides on it, of course, but note how we are told that the home secretary is both a privy councillor and a member of parliament (gosh, fancy that) and nothing at all about Begum.

That the court is seeing things from the home secretary’s perspective is also perhaps indicated by an unfortunate choice of words at paragraph 134:

The court of appeal has been told off by the unanimous supreme court for not giving ‘the Home Secretary’s assessment the respect which it should have received’.

It is not only an unfortunate choice of words, it is also somewhat chilling in a court which is in effect the final guarantor of our basic rights and freedoms either under the common law, human rights law, or otherwise.

The job of the courts is not to ‘give respect’ to assessments of the home secretary – but to approach such determinations with anxious scrutiny.

Perhaps the use of words here is a slip – but one fears instead it is again a tell.

The third immediate impression is that it is a defeatist judgment.

The court of appeal found a compromise which balanced the rights of Begum with those of the executive.

It was an impressive and elegant judgment, and I did a video for the Financial Times:

The supreme court was to have none of this.

For the supreme court justices it is not the job of a court to indulge in such elaborate balancing exercises between the executive and the individual.

Instead, in such a dilemma, there is no judicial compromise:

Not every legal problem, it seems, has a neat legal solution – and the supreme court is averring that courts should not affect otherwise.

The overall first impression is that the supreme court has made a firm turn away from liberalism – liberalism being the general notion that the rights of the individual are to be balanced against those of the state.

(As opposed to the notion that the rights of either side will always trump the other.)

If this first impression is affirmed on careful examination of the judgment then the considered reaction will have to be one of disappointment.

For if the supreme court is taking an illiberal turn, then they will be failing – to invoke a phrase – to accord individuals the respect they deserve.

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A government department or minister has been found to have acted unlawfully or illegally – but what does this mean? And what does it not mean?

21st February 2021

The news item is dramatic.

The high court in London has decided that a government department – or a specific secretary of state – has acted illegally or unlawfully.

The department or minister has, as the saying goes, broken the law!

There will then be a flurry of tweets, retweets and likes – and then demands for resignations, or prosecutions, or whatnot – followed by complaints that the news media (usually the BBC) have not adopted a similarly breathless approach.

And then there will be a sense of anti-climax or disappointment as the news fades and nothing significant seems to happen.

Nobody resigns, nobody is sacked, nobody is prosecuted, nobody has any personal legal liability.

Why is this?

Surely breaking the law has consequences?

Well.

Part of the problem is that the words ‘illegal’ and ‘unlawful’ are wide in their meaning.

(For convenience, the terms ‘illegal’ and ‘unlawful’ will be used as synonyms n this post – though some lawyers will have very strong opinions as their distinction in certain contexts.)

Their core meaning of being ‘illegal’ and ‘unlawful’, of course, is that there has not been compliance with a law – or that a thing has been done without a lawful basis.

That core meaning, by itself, does not tell you what laws have been broken, how they were broken, and what the consequences (if any) are for that breach.

And in the case of there not being a lawful basis for a thing, it may even mean no specific law has been broken as such.

There are many ways in which a thing may be ‘illegal’ or ‘unlawful’.

Yet for many the phrase ‘broken the law’ will mean a person has done something criminally wrong.

That such a person has breached a prohibition for which the criminal law provides a sanction for that breach.

But that is only one way the law can be breached.

This is because criminal law is only a sub-set of the law.

And so the illegality that gives rise to criminal liability is just a sub-set of illegality.

There are other ways a thing can be ‘illegal’ or ‘unlawful’ without any criminal offence being committed.

Another way a thing can be ‘illegal’ or ‘unlawful’ is when a person does not comply with the conditions of a contract, or with the terms of a licence, or commits a wrong such as trespass or negligence.

Such an action or inaction will be to ‘break the law‘ – but these will not usually result in any criminal sanction.

Such wrongs are usually enforced, if at all, by a wronged party suing in a court.

This is what the law regards as ‘civil’ law as opposed to ‘criminal’ law.

Some people can commit dozens – if not hundreds – of such breaches – and nothing happens, because nobody is able or willing to sue for the wrong.

People act unlawfully and illegally every day.

People just like you.

Another way a thing can be ‘illegal’ or ‘unlawful’ is when a public body does not comply with the provisions of the law or its relevant legal duties.

Here the relevant law is called ‘public law’ – a general term for the special laws that regulate what public bodies can and cannot do.

As a general rule, a public body can only do what the law provides for that body to do, and when doing so that body also has to comply with certain duties.

And if that public body does not do so, then it will be acting ‘illegally’ or ‘unlawfully’.

This means the public body, as a matter of law, has not done what it should have done.

The common way for such bodies to be held legally to account for the lawfulness of what they do is called ‘judicial review’ – though the question of legality can also sometimes be raised other legal proceedings.

Judicial review is, in England and Wales, usually before the high court.

When the question of legality is raised, the high court will ascertain the relevant laws and legal duties of the public body, and the court will then determine whether the public body has acted in accordance with those laws and duties or not.

If not, the court can decide whether the public body (or minister in charge of a government department in their official capacity) has acted illegally/unlawfully.

And that…

…is it.

At least that is it, in respect of the substance of the case.

If necessary, the court can then make a ‘quashing order’ that will render the act – a decision, or measure, or policy – as unlawful.

The quashing order will then, by legal magic, remove any legal meaning from what was done (or not done).

In practice, this usually means the public body (or minister) can make the quashed decision (or measure or policy) again, but this time lawfully.

A court may sometimes think a quashing order is not necessary, and may make what is called a ‘declaration’ instead – where the high court declares what the relevant legal position is (or is not).

And sometimes a court can even view that neither a quashing order nor a declaration as having any practical use, and regard the breach as moot or academic.

So a finding by the high court of illegality by a public body may mean there is a remedy, on not, depending on the circumstances.

The role of the court in judicial review is to, literally, review a thing judicially – to see if a thing done or not done by a public body was lawful or not.

And if so, to see if anything practically needs to be done as a consequence.

Nothing more.

No automatic orders to pay damages, still less impositions of criminal convictions.

And sometimes not even a quashing order or other order, or a declaration, as not even that remedy is required to put right the wrong.

This is because the job of public law is not to deal with civil or criminal wrongs directly but to ensure lawful actions by those with public power – and to issue what corrective orders are necessary to ensure that public bodies keep within their powers and fulfil their duties.

Telling the swimmers to stay in their lanes, and blowing a whistle if required.

There is a public interest in this discrete question of legality of public bodies being examined by courts.

Of course, there will always be a clamour for greater sanctions for those individually responsible for such unlawful conduct.

And both the civil law and criminal law do provide the means for civil claims and criminal prosecutions to also be brought in certain circumstances.

Judicial review is not the only legal redress.

Such claims and prosecutions can, however, be complex and time-consuming, involving extensive witness and other evidence, and the need for witness evidence to be examined and cross-examined.

It is harder to impose individual culpability than to review generally whether a public body has acted lawfully or not – especially if intention has to be proved or causation of damage to be shown.

This is not to say there should be no role for civil and criminal liability when things go wrong in the public sphere – but to aver instead that the allocations and inflictions of such liabilities on individuals raise wider legal issues than the narrow question of whether a public body acted within or without its legal powers and duties.

So when the news is that the high court has found that a public body (including a secretary of state) has acted unlawfully or illegally then this means the court has reviewed what has happened and found it legally wanting.

A ‘cross’ rather than a ‘tick’ against the public body’s action or inaction.

The swimmer is in the wrong lane.

And, if required, an order or declaration so as to correct what has gone wrong.

That this does not carry any personal legal consequences for the ministers or officials involved will disappoint some of those following the news.

But to insist that there also has to be personal legal consequences for the ministers or officials whenever there are unlawful or illegal actions by a public body would be to make judicial review ineffective as a useful tool.

And there would be no public interest in that.

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Why is the Human Rights Act 1998 still so contested? And what can be done about it?

Ash Wednesday, 2021

The political hobgoblin is at it again.

As this blog has previously averred, this particular politician is a political hobgoblin, adept at at identifying political gaps and then exploiting those gaps so as to inflict misfortune and spread discontent and gain political support.

As such, this politician should be taken seriously – though not on his own terms.

All because an illiberal politician wants others to join some culture war that does not mean that liberals and progressives have to do so in kind.

But quietism is an error too: the old commands to not ‘feed the trolls’ or ‘give oxygen’ are not useful tactics or a sensible strategy to address relentless authoritarian nationalistic populism.

Instead, corrections should be made as publicly as possible, and illiberal ploys assessed for their significance to see what, if anything, can be done practically to combat any appeals of reaction and illiberalism.

Had liberals and progressives reacted differently to the rise of Ukip, for example, and made the positive and informed case for United Kingdom remaining part of the European Union, and for staying part of the single market and the customs union, then the shape of Brexit may well have been different, that is if Brexit would have happened at all.

So what should one make of this complaint about the ‘EU Human Rights Act’?

One reaction is to laugh and sneer at its legal illiteracy: for the ‘EU Human Rights Act’ is not a thing.

The politician(s) saying otherwise know this, but they do not care.

They are getting the ‘likes’ and RTs and claps and cheers anyway.

And liberal and progressive jeers are, for the illiberals, all part of their political fun: the sound of ‘libs’ being ‘owned’.

But if liberals and progressives simply ignore the hobgoblins then that may have the unhappy result of making certain unwelcome legal and policy consequences more likely.

And the Human Rights Act may end up thrown away like membership of the European Union, and liberals and progressives will stand and stare and wonder: how did this happen?

And here we come to the Human Rights Act 1998, which took legal effect twenty years ago, in 2000.

The statute is still there on the statute book – while politicians who have sought to repeal or dilute it, such as David Cameron, Theresa May and Chris Grayling, have come and gone.

This survival may make the act’s defenders and champions complacent.

But the main reason the act has survived – at least on my analysis – is that the Good Friday Agreement provides that the European Convention on Human Rights is directly enforceable in the courts of Northern Ireland.

And one of the things that the act does is to make the convention directly enforceable in domestic courts in a way that would not be legally possible but for the act.

If the Human Rights Act 1998 was repealed then something very similar to that act would need to be put in place straight away, at least in respect of Northern Ireland.

The current political controversy about the position of the north of Ireland after Brexit indicates, however, that nothing about the Good Friday Agreement should be taken for granted.

And liberals and progressives should not thereby rely on the Good Friday Agreement being the means by which the act will survive, instead of making the positive case for the legislation.

After all, the fact that membership of the European Union provided a practical solution to the question of the border in Ireland did not stop Brexit.

After twenty years of legal effect, the Human Rights Act 1998 is still contested.

It has not eventually become part of the political consensus, in the way that other previously contested legislation have done so.

Every general election the Conservative Party will bang on their populist drum about replacing the act with something else.

Part of this perhaps is because of the name of the legislation.

Had the statute instead been called the ‘Interpretation of Legislation and Powers of Public Authorities (Application of Articles of the European Convention on Human Rights) and Related Purposes Act 1998’ then maybe the act’s opponents would be less incensed.

And as the Police and Criminal Evidence Act 1984 – arguably the most important legislation ever passed for the practical protection of civil liberties – shows, the more boring the name for an act, the more it can get away with.

Here, ‘New Labour’ may be blamed, as for many other things.

For as with the Freedom of Information Act 2000, the government of Tony Blair put dramatically named legislation in place, and then did nothing to take the next step of embedding that legislation as part of the political mainstream.

Just passing the Human Rights Act and the Freedom of Information Act but then not promoting a sustainable human rights and freedom of information culture was a big job left undone.

Another reason why the Human Rights Act is still contested is that the news media do not value the legislation.

Indeed, the way the act enabled the courts to ‘develop’ (that is, to invent) an entirely new tort of the misuse of private information was seen as a hostile move by much of the news media.

And had the courts put comparable efforts into ‘developing’ the right to freedom of expression under Article 10 then the news media may have come to see the act in the same way American journalists see the first amendment.

But in practice, Article 10 often seems to be the weakest of the rights provided for under the act – invoked as part of a perfunctory ‘balancing exercise’ before being rejected in favour of privacy rights.

As the eminent jurists Chas and Dave would put it, Article 10 is the sad neglected Mr Woogie of domestic human rights law, and Article 8 is the popular Mr Boogie.

Poor old Mr Woogie.

And what the Human Rights Act gets right is also overlooked.

Take for example the new Hillsborough inquest.

That there was a further inquest able to to explore fully the circumstances of the tragedy was legally possible only because of the Human Rights Act.

The right to life under the act carried with it the duty to ensure that the circumstances of deaths brought about by the acts and omissions of public bodies (in this case the police) were properly considered.

And so even though the tragedy was before the act took effect, the new inquest had to take the wider Human Rights Act-compliant approach.

But you would not know this from news coverage – and indeed many people who follow public affairs would not know this at all.

There are many other examples, but none that have traction in the public domain.

And so we are left with the occasional outrages instead.

Finally, there is the inconvenient truth that the Human Rights Act is not what some of its supporters say it is.

The act is not an especially powerful statute.

It provides a basis for a court to take a right under the convention seriously, but it does little more than that.

Almost all the rights are ‘qualified’ and so can be side-stepped in practice as long as a public authority can show that the interference with the right is proportionate and in the public interest – and these are not high hurdles.

And, unlike what was the case with European Union law, primary legislation cannot be set aside when convention rights are breached.

The Human Rights Act provides a balance between access to the convention rights in legal proceedings and the doctrine of parliamentary supremacy.

The act does not do a lot, but it does enough – and it is far better than nothing.

But a practical and pragmatic case for something that is ideoologically contested is difficult.

Brexit showed this.

So how does one defeat the political hobgoblins?

By realising that there is a case to be made for a thing that is contested – and by making that case.

By patiently correcting errors of the hobgoblins and by being realistic about what one is defending.

This approach, of course, has no guarantee of success.

But ignoring the hobgoblins – or screaming at or along with them – is even less likely to be successful.

And sometimes contests can be won as well as lost.

The outcome of a contest may not be predetermined.

Ask Mr Woogie.

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