Category: International Agreements

What explains the timing and manner of the Chagos Islands sovereignty deal?

20th October 2024

Towards resolving a puzzle about how and when the decision was announced

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Perhaps the best place to start for a blogpost or any other writing is a sense of puzzlement. A thing does not immediately make sense, and so you find out more and try to work it out.

The news about the Chagos Islands provided such a puzzle.

Why did the United Kingdom this month decide – if that is the correct word – to transfer sovereignty of the Chagos Islands to Mauritius?

Over at Prospect is an attempt at answering this question. Please click here and read the post.

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That this has been a long-lasting dispute is not, by itself, a reason for it to be resolved. Disputes can last a very long time and may never be resolved.

And that the United Kingdom was on the backfoot both legally and diplomatically also, by itself, did not explain the move.

The United Kingdom – if it was able – would have carried on playing for time.

So what happened?

Well it looks like the matter was taken out of the hands of the United Kingdom – even though it is nominally the sovereign power.

The explanation which best fitted the available evidence was that the United States and Mauritius did a deal and then told the United Kingdom that it had to be announced.

What prompted this explanation was something said in the House of Commons debate by the Speaker – which seemed more significant than anything said by minister or backbenchers (emphasis added):

This indicated that this excuse had been given to him by the Foreign Office – either by the minister himself or by a civil servant.

And although, of course, there are upcoming presidential and congressional elections in the United States, there happened to be a general election coming up in Mauritius.

Taking this evidence along with the (very) warm, detailed statement from the United States indicated that both Mauritius and the Unites States were well prepared for this news, even if the United Kingdom was not:

The lack of preparatory media briefing (and leaking) by the United Kingdom government also then made sense. Usually there would be attempts to frame such upcoming news, especially if it looked bad for the United Kingdom.

And because the United States were (so) happy with the news, this rather took the wind out of the sails of those who have been warning that transferring sovereignty would be against American interests or undermine the strategically important base on Diego Garcia.

Warnings such as this one from Johnson in 2023:

An article which, if you read carefully, shows that the former foreign secretary (and prime minister) had an inkling that such a direct deal was in the offing (emphasis added):

The problem is that the highlighted admission rather undermines the alarmism of the article’s title. The Americans were relaxed about a direct deal as long as they retained a long lease for their base.

And it seems the Johnson article correctly describes that the Mauritians and the Americans indeed cut out the “middleman” – and that is the role to which the United Kingdom was reduced, even though we were (nominally) the sovereign power.

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A look at the relevant public domain materials also shows how weak the United Kingdom’s position was becoming.

A little-known 2015 arbitration ruling was devastating in its detail:

(Legal geeks may appreciate how that tribunal deals with estoppel in paragraphs 434 to 448.)

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It was also striking how support for the United Kingdom fell away once the International Court of Justice delivered its 2019 “advisory” opinion.

In 2017, the United Kingdom had a plausible-sounding nod-along objection to the court taking on this case.

But once the court handed down its opinion, it seemed that plausible objection fell away. Support vanished.

Even most commonwealth members, as well as other former colonial powers and/or European Union member states, could not bring themselves to vote with the United Kingdom.

The United Kingdom had been shown to the UN assembly to be in breach of its general decolonisation obligations: and so this was not just another bilateral territorial dispute.

And so the United Kingdom’s position was legally and diplomatically weak: so weak that, at a time of the choosing of Mauritius and the United States, a supposedly sovereign power had to announce during recess it was ceding sovereignty.

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A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision

10th February 2024
This week Prospect posted something by me on the issue of a potential border poll in Northern Ireland.

Please click (and read!) here.

This post unpacks that Prospect post – a sort of “behind the scenes” perambulation of how that post came together – and a further discussion of the issues.

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The starting point is that a potential referendum in Northern Ireland has been in the news.

On one hand:

On the other hand:

The Sinn Fein quote was:

“What I firmly believe is – in this decade – we will have those referendums, and it’s my job and the job of people like me who believe in reunification to convince, to win hearts and minds and to convince people of that opportunity – part of which, by the way, will be really consolidating our relationship with Britain as our next door neighbour and good friend.”

Asked if she meant before 2030, Ms McDonald said “yes”.

The Prime Minister’s quote was:

Rishi Sunak has told Sinn Fein to focus on the “day to day” concerns of people in Northern Ireland rather than a referendum on Irish reunification.

The PM said “constitutional change” should not be a priority for the Irish nationalist party, after newly appointed first minister

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Now we will look at the relevant legislation – the Northern Ireland Act 1998.

There are two key provisions.

First, there is section 1, which should be read carefully:

(And legislative and literary purists will react pleasingly to that “But” at the start of the second sub-section.)

That section 1 needs to be seen in the context of, well, other sections 1s.

Here is section 1 of the Ireland Act 1949 – and look especially at sub-section1(2):

You will see at sub-section 1(2) what can be called the “consent” principle – though it would be for the then parliament of Northern Ireland to give that consent (which at the time would seem very unlikely).

By 1973 that parliament was suspended, and so the Northern Ireland Act 1973 switched the giving of consent to a majority of the people of Northern Ireland:

And as my Substack has set out at length before there had been such a border poll, just before the 1973 Act was passed.

The 1973 poll was heavily in favour of the union – and the nationalists largely boycotted the vote.

At the time the poll seemed pointless from a nationalist perspective, and it was also seen as a sop from the London government to the unionist majority.

However, sometimes, things change – and demographics change.

Those seeking the unification of the island of Ireland no longer see border polls as a necessarily unionist device.

Indeed, the roles are somewhat reversed: it is now the unionists that are wary of a border poll.

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Having set out that context, let us go back to the text of section 1 of the 1998 Act:

Here there is a declaration – and you will note similar wording was used in the 1949 and 1973 Acts. The use of a declaration is not new. And it really has to be a declaration (or affirmation) as it describes something as it stands, rather than providing for something new. Section 1 does not make Northern Ireland part of the United Kingdom – that status rests on other legal instruments.

The sub-section also repeats the requirement that consent is required for this declared status to change – and like the 1973 Act it then refers to a schedule to the Act.

But.

There is that second sub-section, beginning with a “But”.

And this is where it becomes interesting and departs substantially from previous legislation:

The word “shall” in that provision is highly significant.

For sub-section 2 creates an obligation. If the majority in such a poll supports unification, then the government of the United Kingdom has to bring forward the legislation that would make this so.

If you read carefully, however, you will note that the obligation only goes to putting legislation before parliament. It does not actually place an obligation on the government of the United Kingdom to ensure such legislation is passed. In this technical way, the supremacy of the Westminster parliament is maintained.

But if there was such a poll majority, it is difficult to see how the Westminster parliament would reject such legislation – though presumably some unionist and conservative MPs would oppose it, regardless of the “will of the people” on this one inconvenient occasion.

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So much for section 1 of the 1998 Act – for it is in the first schedule that the real excitement begins.

(Oh, for what it is worth, lawyers tend to call them sh-edules, not sk-edules when they are in legal documents, I do not know why.)

Here are the first two paragraphs of the schedule:

The two paragraphs are doing different things.

The first paragraph confers a discretion on the government of the United Kingdom (acting through the Secretary of State for Northern Ireland). The key word is “may”.

The Secretary of State may direct there to be a vote; or, then again, the Secretary of State may not do so. It is a choice.

On the face of it, it is an absolute discretion – the Secretary of State may direct as many such border polls as he or she would like. One poll a day, every day even.

But in invisible ink, so to speak, there are limits to be discretion that are implied by law.

The discretion has to be exercised in the public interest and for the purpose of section 1. And given it is part of a statutory scheme implementing the Good Friday Agreement, it would also be necessarily implicit that the discretion should be not be exercised in the selfish interests of the United Kingdom government in maintaining the union.

But those are very wide parameters, and the courts would not intervene if the paragraph 1 discretion is never exercised in favour of holding a border poll.

(If such a poll is held, however, and a majority is in favour of unification, that would mean section 1(2) applies and legislation would have to be brought forward.)

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Now let us look at the fascinating and significant second paragraph:

This is distinct to and separate from the discretion conferred in the first paragraph, for this paragraph imposes an obligation.

The government of the United Kingdom has to hold a border poll if the condition in that paragraph is met: the government of the United Kingdom cannot choose not to do so.

The condition is framed in wide terms and contains two elements, which I will call (A) and (B): the Secretary of State shall exercise the power under paragraph 1 if (A) at any time it appears likely to him [or her] that (B) a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

The first element (A) is about as wide as you can have as a ministerial discretion under public law (the law governing public bodies). This means a court will not intervene readily to gainsay what the Secretary of State considers to be the position.

But.

Element (B) limits that subjective discretion.

Consider the following: that there is, over a period of time, an accumulation of evidence that the nationalist parties are securing majorities both of the popular vote and of the seats on representative bodies, in successive elections, and especially for seats in the Assembly and the Westminster parliament. And that such support is not a blip but a sustained trend.

There will come a point – a tipping point – where it will be come impossible for a Secretary of State to plausibly maintain that it is unlikely that a majority would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

It would become literally incredible.

At that point, the so-called Wednesbury doctrine (named after this case which my Substack has examined before) will apply.

The Wednesbury rule is that, as a matter of law, it is not open for a public law decision-maker to make a decision so unreasonable that no reasonable public law decision-maker would make it.

A refusal by a Secretary of State to direct that a border poll take place in certain circumstances would be Wednesbury unreasonable.

And that would then make it potentially a matter for the courts.

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The courts will not want to deal with it.

The courts will view this as a political question.

And the two judgments in the McCord litigation (here and here), where an application was made to make the government of the United Kingdom publish (and thereby abide by) a policy on when it would call a border poll, show that judges really REALLY do not want to get involved.

But.

The judges may not get to duck out of it, as much as they would like to do so.

For that second paragraph was placed on a statutory basis deliberately, so that it could have effect in a certain situation.

Here we need to look at the Good Friday Agreement.

The parties to that agreement, including the governments of the United Kingdom and Ireland, agreed the following:

Section 1 and Schedule 1 of the 1998 Act are both express parts of the Good Friday Agreement.

And the United Kingdom undertook to place the provisions on the statute book as part of their obligations under the agreement.

The sentiments behind the provisions could have been put in a mere political declaration, or a recital, or something else without any (real) legal effect – but no. The other parties to the Good Friday Agreement required the United Kingdom to place these provisions into law, and the United Kingdom freely accepted that requirement.

The other parties were wise to do so.

For by placing the obligation into legislation, a legal backstop was created where, if – if – the point was eventually reached where there was simply an abundance of evidence that a majority supported the unification of the island of Ireland, the United Kingdom could not maintain an unreasonable refusal to hold a border poll.

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Of course, in that extreme scenario, the judges may still wish not to get involved – and it is unlikely that the courts would grant a so-called mandatory order requiring the Secretary of State to direct a border poll.

But there would be no reason why the court could not grant a declaration saying instead that a refusal would be Wednesbury unreasonable.

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Another ground on which the courts may intervene is if the second paragraph was used by the government of the United Kingdom to cynically hold a snap border poll hoping that they would win, so as to gain the protection of the stipulation that another such poll could not be held within seven years.

Such a ploy would be in bad faith, and for a collateral purpose, and this would mean that a court could quash such an order.

Wednesbury and bad faith are among the very widest parameters in the public law of the United Kingdom – and they only apply in exceptional cases. But they are there, and this means that paragraph 2 of the schedule is not a law-free zone – as much as politicians (and judges) may want it to be.

There will be circumstances where nationalists can and will apply to the courts to enforce a provision freely agreed to and legislated by the British state. And so the government of the United Kingdom cannot just refuse a border poll forever, regardless of what happens in Northern Ireland.

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Of course, the condition in paragraph 2 may never be met. It may well be that the evidence never becomes that overwhelming and stark, and that support for unification (like support for independence in Scotland) never solidifies into an ongoing, sustained majority.

But that a condition is not (easily) met does not make it any less of a condition at law. The government of the United Kingdom knows it is there, and the nationalist community knows it is there.

It is no longer an absolutely free choice by the government of the United Kingdom whether there is a border poll or not.

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Holding a border poll for Northern Ireland is essentially a political matter.

And in the real world, it is a matter that will undoubtedly be decided by politics, and not by courts.

Yet it is not a situation where the law is entirely absent. The 1998 Act sets a longstop where, if a certain condition is ever met, a border poll has to be held – even if the United Kingdom does not want to do so – and that a majority in that poll for unification has to be respected.

And this is a key and express part of the Good Friday Agreement, that carefully crafted (and extraordinary) document which has had so many long-term effects on our polity.

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Going back to the quotes at the top of this post:

The suggestion is that Sinn Fein believes they will be able to show a sustained majority for unification within ten years; while the British government wants the political majorities in Northern Ireland to signify other day-to-day things, unconnected with the unification question.

You can see why, for both, these are the lines-to-take.

An objective of the nationalists is to create a “majority” situation where it would be unreasonable for a border poll not to be held; while an objective of the British government is to have a situation where a Secretary of State in good faith can reasonably believe that no such majority (yet) exists.

But if and when a political decision is made for the poll to take place, there will be some regard to the ultimate legal position under the first schedule to the 1998 Act.

As always: law shapes policy and politics; and politics and policy shape law.

And the policy and politics that shaped the extraordinary and consequential Good Friday Agreement (and the 1998 Act) in turn continue to shape the policy and politics of the United Kingdom.

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What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers

15th December 2023

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Those criticising human rights law and lawyers often shy away from spelling out the substance of a particular right

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You may or may not remember Abu Qatada and how he once featured in British politics.

About ten or so years ago, he was the Rwanda policy of his time.

The British government under both Labour and then the coalition of Conservatives and Liberal Democrats wanted to deport him to Jordan.

But the pesky human rights lawyers and pesky human rights judges and pesky human rights courts would not let this deportation happen.

And how the politicians and the media fumed.

The headlines seem somewhat familiar:

But what was missing from almost all the news coverage and political discussion was the actual reason why human rights law was preventing the deportation of Abu Qatada.

And that reason featured an ugly word, a word which politicians and the media of the United Kingdom like to avoid.

That word was torture.

In particular, in this case, whether it was open for a person to face legal proceedings where the evidence had been obtained by torture.

This meant that if you wanted to deport Abu Qatada by withdrawing from the European Convention on Human Rights (ECHR) what you were really saying was that it was fine for a person to face criminal charges based on evidence gained by torture.

Of course, that is not what was being said: what was being blamed were the pesky human rights lawyers and pesky human rights judges and pesky human rights courts.

But all the pesky human rights lawyers and pesky human rights judges and pesky human rights courts in the world can do little or nothing unless there is an actual right being infringed.

In the end the United Kingdom resolved the problem not by breaking human rights law or withdrawing from the ECHR, but by negotiating a treaty with Jordan where it was agreed that torture-gained evidence would not be used:

Abu Qatada was deported not because then Home Secretary Theresa May stood up to the pesky human rights law, but because she and the United Kingdom government complied with human rights law.

And what then happened?

Without being able to rely on torture-gained evidence, Abu Qatada was cleared in Jordan of the criminal charges he faced:

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Ten years or so later, we are repeating the same sort of story.

The pesky human rights lawyers and pesky human rights judges and pesky human rights courts are stopping the government implementing the Rwanda scheme.

But, as with Abu Qatada, most (if not all) of those upset by this non-implementation leave unsaid the actual substantial right at issue.

The principle of non-refoulement means that an asylum-seeker should not be returned (or otherwise removed) to a country where their human rights will be violated.

As the Supreme Court set out in the recent appeal judgment:

Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

Just as those in favour of Abu Qatada’s deportation did not say (aloud) that they wanted a person to face charges based on torture-gained evidence.

But in both cases that is the necessary – inescapable – implication of their position.

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Sometimes, of course, when it suits, those opposed to human rights law will happily spell out the substance of their grievance: take prisoner votes, for example.

In that example, both the substance of the right and pesky human rights lawyers and judges and pesky human rights courts could be attacked, and were.

But even with prisoner votes, the underlying problem was resolved by political negotiation and case law rather than defiance:

Again: reform and compliance, rather than confrontation.

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Unlike the prisoner votes issue, however, those in favour of the Rwanda scheme do not want to spell out the underlying human rights issue.

And that omission is – or should be – a tell.

It tells us that those wanting to rid us of human rights law do not want to address why there is a human rights issue at stake.

They want to tell you the tale of pesky human rights lawyers and judges and of pesky human rights courts as being a political problem in and of itself.

No doubt many human rights lawyers and judges are irksome, but it is only possible for them to be obstructive when there is a fundamental right at stake in a concrete case.

And, as with Abu Qatada and prisoner votes, such obstructions can be resolved by, well, politics: reform, negotiation, compliance.

You know: the sort of things which politicians are supposed to do, when they are not blaming human rights law instead.

Using ugly situations as the means to attack human rights law indicates that there is something else going on.

It shows that what is really being clamoured for is for brute executive might to be allowed, despite the violations of rights in individual cases.

But that bit is usually left unsaid.

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On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

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I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

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Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate.  It would not have been relied upon had the government been actually serious about this policy.

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I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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The failure of Brexit to return real power to Westminster: a worked example

16th March 2023

Yesterday this blog averred that Brexit so far has been about giving power to Whitehall than giving power to Westminster.

Ministers since 2016 have been using the rhetoric of “taking back control” so as to make government less accountable to parliament.

And today: a worked example:

You may have strong views about Brexit, and you may have strong views about the Windsor Framework.

(This blog has set out why, although the Windsor Framework is a Good Thing, the supposed ‘Stormont Brake’ is more likely to be an ornament than an instrument.)

Yet sensible people would want the Windsor Framework to be be properly considered and scrutinised by parliament.

For that is what sovereign parliaments should be able to do.

But, no.

The government is not giving parliament any adequate opportunity to examine the Windsor Framework.

This is more government by fiat, by ministerial decision.

You may think that is a Good Thing: that our government should be all-powerful between general elections with no or almost no accountability to parliament.

But, if so, do not pretend to others that Brexit was ever about giving power back to the Westminster parliament.

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Sovereignty, again

9th March 2023

In law and policy commentary – especially since 2016 – we go from the general to the particular, and from the particular to the general.

We swing constantly between the grandest constitutional concepts – the separation of powers, the rule of law, sovereignty – to the exact wording of particular clauses and other texts.

It really should not be this exciting, but it is.

Today we will look at sovereignty again.

And some of you will complain about who I am about to quote, but it is an example of a frame of mind which still has not gone away.

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Sovereignty is generally about the ability of states to decide things as they wish and to do things (or attempt to do things) as they want.

More exactly, it is about the autonomy, capacity and legal personality of states.

One general feature of sovereignty is therefore about the ability of states to enter into agreements with other states, or not.

Just as it is a general feature of adulthood to enter into various legal relationships, or not.

(And please note, the uses of “general[ly]” means, yes, there are exceptions, so no need to scroll down to list them in a comment.)

It is thereby an exercise of sovereignty to enter into treaties and to become a member of various international organisations.

That is what sovereign states do.

And they do it, in part, because they can.

As such, to say that a state being party to an international agreement is a negation of sovereignty is to fundamentally misunderstand what sovereignty means.

The very fact that the United Kingdom is a party to the United Nations shows that it is a sovereign state.

Indeed, one useful working definition of what is a sovereign state is whether it is (or is capable of becoming) a member of the United Nations.

And membership of an organisation will generally confer rights and impose obligations.

If a state does not want to have those rights and obligations then it can leave, either by an agreed exit process (such as the once-famous Article 50 of the Treaty on European Union) or by treaty or even by denunciation.

One of the most telling passages in the story of Brexit was in a government white paper before departure:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

Membership of the European Union has “not always felt like” we had sovereignty.

This suggested Brexit was an exercise in political therapy: so as to make us feel that we had (and have) sovereignty.

But we had sovereignty all along.

We could have left the European Economic Community and then European Union at any point – though before the treaty of Lisbon (which introduced Article 50), it would have had to have been by treaty (as happened when Greenland left) or by denunciation.

And we could have, at any time, repealed the European Communities Act 1972 without asking any one’s permission.

What Farage and others mean by “sovereignty” is isolationism.

Their ideal is for the United Kingdom not to be bound by any unwanted international obligations, or indeed by any international obligations at all.

But treaties generally require those who enter into them to limit or forego certain rights in return for some benefit.

For that is the nature of international agreements.

Yes, we can – ultimately – always walk away.

And we should be careful which obligations we accept when we enter such agreements.

But such obligations are the essence of the dealings of a sovereign state.

And that sovereignty is always there, even when it does not feel like it.

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Will there be a deal on the Northern Irish Protocol? And what then?

14th February 2023

The negotiations for the final shape of Brexit continue, even though the United Kingdom departed the European Union three years ago.

Of course: it would have been more sensible to have concluded these negotiations before the United Kingdom departed (as some of us pointed out at the time), but both the United Kingdom and the European Union wanted to press on and get the formal departure over with as soon as possible.

But the price of that speed has been a lack of finality.

The current news reports indicate that a deal may be on the offing about the dispute over the Northern Irish Protocol.

You may recall that this dispute was once so urgent that the United Kingdom government, with a straight face if not a straight bat, maintained last year that its envisaged domestic legislation that would enable the United Kingdom to breach the protocol even met the test of “necessity” under international law.

That was balderdash, as anyone sensible at the time knew – and it is no surprise that the enabling legislation has been frozen.

The one sticking point appears to be something that is both fundamental and trivial: the role of the European Court of Justice.

Fundamental because, to the extent that the laws of the European Union apply in respect of Northern Ireland being inside the single market, the European Union understandably want those laws to be interpreted in accordance with the European Union treaties and consistently across the single market.

And the only entity that can ensure such authoritative and consistent interpretations is the European Court of Justice, for that is what that court does.

But for Brexiters this smacks of the European Court of Justice having jurisdiction in Northern Ireland, which it should not have, because of Brexit.

And it is also trivial, because few other than obsessives care and in practice it would not make much difference.

Given all this, there will be some fancy choreography and packaging.

What will probably happen is that the substance of European Union laws being applied in accordance with the European Court of Justice’s jurisprudence will be maintained, but it will somehow look as if this is not the case.

The reason for such a compromise is that Brexit and completely open trade borders on the island of Ireland are not ultimately compatible – they never have been, and never will be.

And this predicament of the Irish border – although obvious – was not thought through by those who clamoured for Brexit.

Other problems may be addressed – if not resolved – by the establishment of “lanes” and the use of technical “real time” data.

However, getting the two sides to a sort-of-agreement is one thing, getting the endorsement of the United Kingdom parliament is another.

And unless the deal can be framed as a great British victory (and Brexiters swallow this) then either the deal will not pass parliament or the passage of the deal relies on opposition support and thereby breaks (further) the governing party.

No wonder the Prime Minister’s circle are making noises about quitting the European Convention on Human Rights and persisting with its daft legislation on repealing retained European Union law.

The Prime Minister needs all the distractions he can muster, as getting this deal past his own backbenchers is not going to be easy.

And we may even end up – as with 2017 and 2019 – with the run-up to a general election being dominated by parliamentary splits and rebellions over the question of Brexit.

Brace brace.

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How the government won but also lost the court case on Rwanda removal policy

19th December 2022

Today the High Court handed down its judgment in respect of the many legal claims brought against the Rwanda removal policy.

On the face of it, the government of the United Kingdom appear to have won – and that is certainly how the judgment has been reported:

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But.

In two ways the government has not won, and indeed this may not be a welcome judgment for the government.

Let me explain.

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The wide legal challenge was to the policy.

In effect the policy is as follows: the Home Secretary can decide that asylum claims made in the United Kingdom should not be determined here, and that instead the persons who have made those claims should be removed to Rwanda to have their asylum claims determined there.

A legal challenge to any policy is always difficult – almost impossible.

This is partly because courts do not like intervening in matters of policy, as opposed to reviewing particular rules and individual decisions.

It is also partly because to say that a policy is unlawful means, in effect, that every possible rule made under that policy and every possible decision made under that policy will be unlawful.

And it is partly because policies can be adapted and modified so that the possibility of the policy itself always being unlawful can be avoided.

A policy is always the hardest target to hit in the administrative law courts.

It was therefore no great surprise that the High Court in this case – with a bench comprised of the two most experiences judges in administrative law matters – rejected the challenge to the policy as a whole.

And so, the government “won”.

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The government, however, also lost.

In the eight individual cases under review, the High Court decided that the removal decisions be quashed and the Home Secretary take the decisions again with proper regard to individual circumstances.

Look at the final paragraph carefully:

That paragraph indicates that the government lost on nineteen particular decisions in this case.

Nineteen.

Each of those nineteen decisions was legally flawed: every single one.

The policy may well be lawful – but in not one case was the policy lawfully applied.

And so the the government lost all the individual cases.

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Now we come to the real defeat for the government.

The import of the High Court decision is that in respect of each removal to Rwanda under the policy, the Home Office has to apply the policy in a robust and reasoned manner to the individual circumstances of each case in each of the decisions to be made.

Otherwise the removal will be successfully appealed or reviewed.

But for page after page of this judgment there is a catalogue of Home Office errors in respect of each of the cases.

The impression one forms reading the judgment as a whole is that, with the resources and administrative competence available, the Home Office simply is not capable of making all the individual decisions so that many removals to Rwanda are likely.

For the legal issue with decisions which need to be made on individual circumstances is that each decision can be appealed or otherwise legally challenged according to those circumstances.

Or to put it another way: the government has legally saved its Rwandan removal policy at the expense of making the lawful implementation of that policy extraordinarily resource-intensive and financially expensive.

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Of course, this judgment may be appealed by the claimants – though it seems at first read a strong judgment by two highly regarded judges in this field, and I do not think an appeal would be likely to succeed.

And so perhaps the policy under challenge may actually be implemented – though it seems there are no current plans to send any asylum seekers to Rwanda.

But.

Even if this policy is one day lawfully implemented – if – it will be always be an administrative and financial drain of the highest order on the Home Office and thereby the taxpayer.

Many will say that the policy is immoral and should be dropped on that basis alone.

Being immoral, however, does not make a policy unlawful.

But a policy being lawful also does not make it practicable.

The government and its supporters may raise a cheer that the policy is itself has been held to be not unlawful.

But today’s judgment means that – like the chartered flights to Rwanda last summer – the lawful implementation of the policy may never really get off the ground.

 

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Today 71 Members of Parliament supported a Bill that would have allowed the government to break international law on asylum seekers

14th December 2022

Earlier today, 71 Members of Parliament supported a Bill that would allow the government to send asylum seekers back to the countries from where they had most immediately come from, regardless of international law.

The Asylum Seekers (Return to Safe Countries) Bill is here.

You will see in the Bill there is this clause one:

It is not a well-drafted Bill.

Look at that clause one again, and see if you can spot the term “asylum seeker”.

You will not find it in the substantive and operative text, but only in the title of the clause.

Nonetheless, clause four of the Bill defines “asylum seeker” as follows:

(This is therefore a shoddy bit of legislative drafting: defining a term and then not actually using it in the substantive and operative provision is a howler.)

But let us pretend that the drafter of the Bill had got it right and included the defined term in the substantive and operative provision, rather than just in a title of a clause.

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As it stands, my understanding is that whether an asylum seeker has come from a “safe country” may affect the credibility of an asylum application:

This means it is a factor that goes to the exercise of the discretion of the decision maker on the asylum application.

But.

The Bill presented today goes beyond such issues of credibility, and requires that provisions be made for the asylum seeker’s immediate removal if they have arrived from a “safe country” – even if that is not where from where they are ultimately fleeing.

If you look at the scheduled list of “safe countries” you will see that it is unlikely for any asylum seeker to have arrived here – at least by boat – without coming from one of those listed:

Ireland, Spain, Portugal, France, Belgium, the Netherlands, Germany, Norway, Iceland – and all other geographically close countries – are “safe countries”.

And so if today’s Bill was passed into law, then any asylum seeker – even if they were fleeing from Afghanistan, Iraq or elsewhere – would be returned to the “safe country” from which they had most immediately left to get to the United Kingdom, regardless of the United Kingdom’s obligations under the Convention Relating to the Status of Refugees.

The United Kingdom’s obligations under the Convention Relating to the Status of Refugees apply regardless to the route by which the asylum seeker has reached our shores.

Even the current law sets out that a route here via “safe countries” only goes to credibility.

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Some may want to dismiss today’s vote – perhaps even scoff at it.

But it is significant.

I remember back in October 2011 the scoffing at the 111 Members of Parliament who voted against the government for a referendum on the European Union.

We are not scoffing now.

Similarly, 71 is not a trivial number of Members of Parliament.

And despite the government not supporting today’s Bill, the 71 Members of Parliament voted so as to enable the government to break international law anyway.

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There is something worrying with the readiness of Members of Parliament to support legislation that expressly enables the government to break its international legal obligations, whether it is the Northern Irish Protocol Bill or today’s Asylum Seekers (Removal to Safe Countries) Bill.

Yes, the Bill’s supporters lost – today.

But as in 2011, such a rebellion is perhaps a sign of things to come.

Today’s vote is not a good sign.

Brace, brace.

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How three Bills now before Parliament tell us the story of Brexit

7th December 2022

Here is a story about three Bills.

The Bills are not chaps called William, but legislative proposals placed before the Westminster parliament by the government of the United Kingdom.

Taken individually – and especially taken together – these three Bills tell a tale.

They tell the story of Brexit.

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The first Bill is the Northern Ireland Protocol Bill.

This is a proposal that would enable the government of the United Kingdom to break the exit agreement it signed with the European Union.

This agreement was signed in a rush, so as to “get Brexit done”.

This was the agreement which, if you recall, was promoted by the-then prime minister Boris Johnson as an “oven-ready deal”.

And this was the agreement which sought to square the rushed Brexit with no commercial border in the island of Ireland.

(An alternative way of addressing the same problem, with the “backstop”, was rejected when Theresa May was prime minister.)

The current Bill is an attempt to somehow unwind this solemnly agreed position.

Many think this Bill has no good purpose – indeed, many regard the Bill as having no purpose other than to placate some government supporters.

And it certainly is a rum thing for any government to so openly proclaim its lack of good faith in entering international agreements.

The Bill, therefore, tells us about the lack of thought and preparation of the government of the United Kingdom in how it approached Brexit.

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The second Bill is the Retained EU Law (Revocation and Reform) Bill.

The Bill shows us that the government of the United Kingdom, having got Brexit done, does not know what to do with it.

This is the proposed legislation promoted by Jacob Rees-Mogg which would automatically repeal all European Union law still in force.

It does not matter whether that law is useful – or even essential.

It does not matter if the law was negotiated by the United Kingdom and serves to protect certain public interests.

The retained law is going to be repealed automatically anyway.

There is no good reason for this silly Bill.

The only reason it exists is to show that the British government is doing something – anything – with the supposed “Brexit opportunities”.

And as no concrete, discrete opportunities have been identified, it is doing this daft and potentially dangerous thing instead.

This second Bill, therefore, tells us that not only did the government rush through Brexit without proper preparation, but it also has no idea what will follow Brexit.

(In this, this second Bill is akin to the rushed and disadvantageous “international trade agreements” which were also signed so as to show “Brexit opportunities”.)

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The third Bill is the Bill of Rights Bill.

This legislation is not directly about the European Union, but it tells us everything about the need for there to be new “European” courts and laws for the government to attack.

Brexit was simply not enough, and so the next target is the European Convention of Human Rights.

This third Bill shows the need for Tories to have a perpetual war with “Europe” (even if not the European Union) that has been unsatisfied by Brexit.

The Bill itself is not a good piece of legislation, and it has been roasted by judges and Conservative politicians.

It seeks to repeal the Human Rights Act, and to make it as difficult as possible for anyone to rely in domestic courts on their rights under European Convention of Human Rights.

This third Bill, therefore, tells us that Brexit was not really about the European Union, but about trying to satisfy (but failing to satisfy) the endless demand of some government supporters for confrontation and retreat with something European.

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If Brexit was worthwhile, then it would take only one good government Bill to show the benefits of Brexit: for the United Kingdom government to show what it could do with its new autonomy from the European Union.

But there is no such good Bill.

Instead there are these three misconceived and illiberal Bills, each trying to do something pointless or needless.

Each in their way, and when taken together, telling us all we need to know about Brexit: that the exit was rushed and botched, that the exit has provided no practical benefits, and that that the exit will never be enough for many of those who supported it.

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