Category: Legislation and Law-Making

How significant would the repeal of Human Rights Act really be?

3rd October 2021

Yesterday was the twenty-first birthday of the Human Rights Act 1998 taking full effect.

This statute gives direct effect in domestic law to rights contained in European Convention on Human Rights (ECHR).

The Act, however, may not be in effect for that much longer.

This is for two reasons.

First: the new lord chancellor and justice secretary Dominic Raab is a long-time critic of the legislation, and as a junior justice minister previously sought to get the Act repealed.

Second: there is a review soon to report that may be the occasion (or pretext) of the Act being repealed.

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How significant would repeal be?

In one way it would have to be of no effect: for the Good Friday Agreement expressly mandates the United Kingdom to ensure that the ECHR is enforceable directly in the courts of Northern Ireland.

Unless the United Kingdom seeks to breach the Good Friday Agreement then any repeal must not have the effect of making such direct enforcement impossible.

Another way in which repeal would have limited effect is that since 2000, the ‘common law’ has ‘developed’ so that domestic law is more consistent with the ECHR without needing to resort to relying on the Human Rights Act.

So, in a way, the stabilisers can now come off the bicycle – the direct effect of the ECHR has now had its beneficial impact, and we can now perhaps do without it.

And there is certainly no need for the legislation to have such a bold and (for some) provocative title: a replacement law could be boringly titled as the European Convention on Human Rights (Construction of Statutes and Related Purposes) Act.

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But the real reason why the repeal of the Act may not have a dramatic effect across the legal board is (in a stage whisper) it was never really that powerful an Act in the first place – even though it has had some impact on legal development.

For example, and unlike with European Union law, a domestic court could not disapply primary legislation for being in breach of a pan-European law.

Almost all the convention rights are ‘qualified‘ in that the government can often infringe those rights easily if it has its legal wits together.

And although there are some areas of legal practice – for example family proceedings and immigration appeals where convention rights can (and should) make a difference – these specific areas do not now need an entire Human Rights Act.

Also: there are many ways in which courts will still be able to have regard to the ECHR in interpreting and constructing legislation, even without the Act.

And as long as the United Kingdom remains party to the ECHR – and the current government says that this will not change – there will still be the right of United Kingdom citizens to petition the Strasbourg court if the United Kingdom in in breach of its obligations, as was the situation before the Act was passed.

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So: if the Act is repealed, it would not necessarily be a practical disaster.

The significance of the repeal of the Human Rights Act would be much the same as the significance of having such an Act in the first place: symbolism.

What some people put up, other people want to knock down.

If the Human Rights Act were a statue rather than a statute, Raab would want to throw it into the harbour, just for the sheer symbolism of doing so.

Splash.

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But as a matter of practical law, the general effect of repeal would not be that legally significant, especially if provision was made for it to continue to have effect in Northern Ireland and in specific practice areas.

Yet symbolism is important, rather than trivial and dispensable.

Having a statute called the Human Rights Act that expressly gives general domestic effect to our international human rights obligations and providing minimum (even if qualified) rights is a good thing in itself.

And so, even if the practical significance of repeal would not be that great, it is still a Good Thing that we have the Human Rights Act.

Perhaps this review of the Act will be as mild in its proposals as the recent review on judicial review.

Perhaps, as this blog has previously averred, Raab would be well-advised not to use his limited ministerial time on this issue instead of dealing with the legal aid and prisons crises (and on this also see former lord chancellor and justice secretary David Gauke here)

Perhaps; perhaps not.

Perhaps there will be a direct hit on liberal sensibilities and that, this time next year, there will not be a twenty-second anniversary of the Human Rights Act still having effect.

Us woke libs wud be pwned.

But, even if repeal does come to pass, those twenty-one years were good ones for the development of our domestic law.

And so if the Human Rights Act is repealed, those twenty-one years of impact on our domestic laws will not (easily) be abolished.

The Act’s memory will be its blessing.

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Laws are to be suspended and the army is to be called in – and why we should be concerned when activating the law of civil contingencies becomes a civil necessity

27th September 2021

Once upon a time it would be sensational news that the army was to be called in and that laws were to be suspended.

It would indicate, perhaps, something about either a failed state or an unforeseen emergency, or both.

As it is, the news seems almost commonplace – and that it would be more exceptional nowadays for the news to be less sensational.

The laws that are to be suspended are competition laws – which (we are told) would otherwise prevent petrol companies from coordinating with each other.

I am not an energy law specialist – though I know a little about competition law – and it would be interesting to know exactly how current competition laws would prevent coordination in the current situation.

This law-suspension exercise has the grand name of ‘activating the Downstream Oil Protocol’.

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‘Dispatch War Rocket Ajax.’

Flash Gordon screenplay, 1980

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And the official statement is here, and it includes this:

‘Known as The Downstream Oil Protocol, this step will allow Government to work constructively with fuel producers, suppliers, hauliers and retailers to ensure that disruption is minimised as far as possible.

‘The measure will make it easier for industry to share information, so that they can more easily prioritise the delivery of fuel to the parts of the country and strategic locations that are most in need.’

As competition law in this respect is about preventing what would otherwise be cartel behaviour, then it would appear that the fuel industry want to (or need to) do something between themselves that would otherwise carry potential legal risk as cartel behaviour.

Perhaps more will be come clear on this as the protocol is activated, though it seems such relaxations of competition law have been done before in other recent emergencies:

If this is what is being done, we should note that the relaxations – or suspensions -of law do not have any real parliamentary oversight or control.

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And now the army.

(Source)

But as this news report explains:

“It is understood that it would take up to three weeks to fully implement, because some of those mobilised may already be on other deployments and others could be reservists.’

And so, by the time the army arrives, it may be too late – and it certainly is not something that is intended to happen in the next few days.

This manoeuvre is known, it seems as activating ‘Operation Escalin’.

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‘Dispatch War Rocket Ajax.’

Flash Gordon screenplay, 1980

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Just as constitutional law should be dull and it is not a good sign when constitutional law is exciting, the same can be said for the law of civil contingencies.

It is not normal for laws to be suspended and for the army to be used for civil matters – and it should never become normal.

But.

The various problems facing the United Kingdom mean that what are civil contingencies are becoming civil necessities.

Brace brace.

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Legal drafting and computer programming – a post in memory of Sir Clive Sinclair

19th September 2021

Some of the best legal drafters you will meet – those who put together formal legal documents such as contracts and acts of parliament – will have a background in computer programming.

This post sets out an explanation for this, from the perspective of an experienced legal drafter, as to why it seems (from the outside) the legal drafting process is similar to the computer programming process.

Of course, this perspective is that of a lawyer and writer – but I hope it is in general enough terms that the comparison it seeks to make is of some wider interest and validity to experienced programmers and others.

(My own coding skills are almost literally BASIC (and some HTML).)

The perspective set out below will be separated out into items, line-by-line, as-a-whole, and stress-testing, as well as a conclusion and a tribute.

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Items

By items I mean particular symbols or words – the smallest useful things to be typed.

For both the coder and the drafter each item will (or should) have a purpose.

(Even if that purpose is to be deliberately redundant –  we once caught out a copyright infringer because they had duplicated intentionally dud code that could not have been there without naughty copying.)

For the lawyer, each word in a formal legal document has (or should have) a purpose: it has been chosen instead of other words, and also instead of no words at all.

Here there is the ‘rule against surplusage’.

If a legal document says a thing then (it is presumed) that thing is there for a precise purpose.

And if it serves no purpose, then it should not be there.

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Line-by-line

Here we look at lines of code or clauses (or sections or articles) of a legal document – short sequences of items.

The intention with a line or a clause is that there is a thing meaningful enough to have meaning in and of itself – in effect: a proposition.

That one can look at it and say: that line or clause does this – but not that.

Most coders and lawyers are capable of producing such discrete things.

Certainly any competent lawyer should be able to draft a simple clause: ‘[x] shall do [y] in return for [z]’.

But – at least for lawyers – the difficult thing about drafting is not in composing a single clause but with the next two stages.

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As-a-whole

The first real difficulty with a legal document – as perhaps with a program – is getting clauses to work together as a whole.

That clause one does not contradict clause two, and that clause three is workable in view of clauses, one, two and four, and so on.

In this way, a legal document is usually complex – and not linear.

Each clause not only has to fit in with the clauses immediately before and after (like, say, a verbal jigsaw) but with every other clause in the document.

If clause sixty does not work with clause five then there is a potential problem.

And so, although some legal instruments are readable – sometimes elegant – they are not linear texts like an elementary short story.

I understand this is also the approach to coding – line 60 of a program has to match line 5.

The goal is therefore to create a thing as-a-whole that is internally coherent.

But.

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Stress-testing

And this is the second big challenge.

One can have a legal instrument – or a computer program – that is beautiful in its internal coherence, where each intricate point works with other intricate point.

And it still will be useless if it does not work in practice.

For legal instruments and computer programs are (or should be) practical things.

Instruments, not ornaments.

If a contract or an act of parliament fails any test provided by reality – then it is not reality that is ultimately at fault.

And similarly (it seems to me) a program that fails a test provided by reality – then it is also not reality that is ultimately at fault.

I have long thought, for example, that draft legislation should always be published – almost in Beta mode – for stress-testing before any actual implementation.

And that all legislation should be subject to regular testing and review, rather than just being dumped on to the statute books.

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Conclusion

Of course: as you read the above – just as I typed the above – exceptions and differences will come to mind.

And such exceptions and differences are to be expected – for I am not contending that two things are identical, only that they may be similar, and so I am identifying only points of similarity.

I could have posted a sequence of points of difference, though I do not think that would have been an especially interesting post to read or write.

And, again, I aver that although I am an experienced legal drafter, my coding skills are otherwise limited.

But there is, I think, something in the understanding that legal codes and computer codes may have similarities, and also that there is something in the understanding whether the coding processes that go into both are similar.

If there are similarities, then – in turn – there may perhaps be many things that the two disciplines can learn from each other.

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Tribute

This post is prompted by the news of the death of Sir Clive Sinclair.

In the 1980s my introduction to programming was the rubber-key BASIC shortcuts of the Sinclair Spectrum 48.

It was by learning how to code that I first developed the skills that, later, made me actually enjoy the drafting of complex legal documents.

‘IF [x] GOTO [y]’ has – at least for me – a lot to answer for.

</tribute>

END

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Raab’s choice: repealing the Human Rights Act or a being a genuinely reforming Lord Chancellor ?

17th September 2021

Over at Joshua Rozenberg’s blog there is further discussion of the appointment of Dominic Raab as lord chancellor – following my (well-received) post yesterday.

Rozenberg makes two solid, good points.

The first – which I did not cover, but is obvious – is the paucity of junior ministers in the house of commons to support Raab.

Either by design or by accident, this at a stroke undermines the position of the new lord chancellor and deputy prime minister.

It may even indicate that Raab neglected to make insistence on this point before his appointment – and that for him the form and style of ‘deputy prime minister’ was a higher priority than the ‘boots on the ground’ of actual junior ministers in the commons.

A good spot by Rozenberg.

The second – which I refer to but Rozenberg spells out in more detail – is about the future of the human rights act.

Raab now has a decision – perhaps a huge decision.

Will he choose to spend his (perhaps) limited time as lord chancellor in his eternal quest to repeal the human rights act – a task which will be complicated and time-consuming and maybe ultimately futile.

Or will he choose to spend his limited ministerial time dealing with more immediate and everyday issues facing the ministry of justice – from prisons to effective criminal justice.

What will be Raab’s priority?

Does Raab want to be known as the politician who repealed the human rights act?

Or does he want to be a genuinely reforming lord chancellor, addressing a justice system in crisis and near-collapse?

For he is unlikely to have the time and resources to do both.

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How the government has bounced this week’s tax hike through parliament like it bounced through the Brexit deals

9th September 2021

This week’s political excitement about social care and national insurance seems familiar.

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If you set aside all the noise and drama, all that has happened this week is that the government has – at speed – got a huge tax increase past its political and media supporters.

Indeed, a number of those very political and media supporters have clapped and cheered.

There will be no meaningful reform to social care.

There has been no meaningful scrutiny of any proposals.

And, as this blog averred recently, it is political and legal nonsense to say that the extra revenue being raised will be ‘ring-fenced’ for health or social care.

Had this not been done at speed then the implications of the huge tax hike and lack of policy substance may have become apparent.

It has simply been a political smash and run.

A deft exercise in getting something unpalatable past your own political and media supporters.

And it has worked – if you understand it in these cynical terms.

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What makes this seem familiar?

Well.

It is almost the same model of what happened with the Brexit exit and relationship agreements.

They too were rushed through parliament so as to prevent any useful scrutiny from the government’s media political supporters.

The brisk pace meant that many issues were hidden from view – until it was too late.

And, at the time, the government’s political and media supporters clapped and cheered too.

Many are not clapping and cheering now.

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Why ‘legally ringfenced’ is a phrase used by political knaves to take you for a fool

7th September 2021

Another late-night revelation about our current government-by-essay-crisis:

The phrase ‘legally ringfenced’ is a legal and political nonsense.

It is a legal nonsense because nothing in the United Kingdom can, in any meaningful way, be ‘legally ringfenced’ .

This is because of the doctrine of parliamentary supremacy, which means a parliament can make or unmake any act of parliament.

Nothing – to use a similar dishonest phrase – can be ‘enshrined in law’.

Even if there were a provision put in a statute – with super-duper protections intended to prevent its repeal or amendment – the provision and all those super-duper protections could be repealed or amended with a simple parliamentary majority.

And it is a political nonsense for it is a trick that that has been played before and which has been exposed as trick before.

The international aid budget was, supposedly, legally ringfenced.

The fixed-term parliaments act was, supposedly, enshrined in law.

The current triple-lock on pensions likewise, and so on.

And so on.

But still politicians use this trickery – and still too many nod-along by these impressive sounding phrases.

The claims ‘legally ringfenced’ and ‘enshrined in law’ do have a rhetorical purpose, of course.

They invoke the majesty of law to charge up what would otherwise be a banal political utterance.

An utterance intended to reassure waverers or even win over somebody who would otherwise be opposed.

And in that way, it is perhaps slightly significant that politicians still feel law has sufficient respect so that political statements can be framed as grand legal announcements.

But it is trickery all the same.

Any politician who uses the phrases ‘legally ringfenced’ and ‘enshrined in law’ is a knave – and a knave taking you to be a fool.

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To Brexit and back again: how political ‘mandates’ have returned to meaning nothing

6th September 2021

Long ago, before 2016, ‘mandates’ were not taken that serious in the politics of the United Kingdom.

To the extent that a mandate from a general election made any constitutional difference, it meant that in practice (and by convention) the house of lords would not block anything that had been in a manifesto of the majority house of commons party.

There certainly was not any firm obligation on the government to bring each manifesto commitment to the floor of the house of commons, let alone pass any legislation.

And from time to time – for example, with the poll tax (‘community charge’) endorsed in the 1987 general election – a government will reverse a policy contained in a manifesto within the same parliament.

Because, long ago, mandates were seen as weak things in our representative, parliamentary democracy

And then.

And then came the 2016 referendum on membership of the European Union, which had a small though clear majority in favour.

This result – in a non-binding referendum – became ‘the will of the people’.

The result was a mandate that no person or institution would be allowed to gainsay.

If senior judges said that there needed an act of parliament for the Brexit notification to be made, they were howled at as ‘enemies of the people’.

Members of parliament opposed to the departure were similarly denounced.

An electoral mandate was no longer a weak thing.

The mandate was the strongest thing in politics.

A force so strong that nothing could stand in its way.

And then.

The United Kingdom departed from the European Union.

Now, the same government that insisted that ‘the will of the people’ was absolute is now seeking to renege on its manifesto commitments.

The international aid budget has been cut, and it looks like the ‘triple lock’ commitment and tax commitment are both going, perhaps this week.

The government no longer cares that much about mandates.

The government no longer cares about the will of the people as expressed through a ballot box.

Mandates are weak things again.

It has been a strange few years, politically.

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The folly of diverging from the GDPR just because we can

26th August 2021

Like a dog that caught the car, the United Kingdom government is wondering what to do with Brexit.

Today’s offering, reported in the Telegraph is overhauling or replacing or something to do with GDPR – the European Union’s detailed data protection regime.

The flavour of the suggestion is in these tweets:

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The proposal has the usual signs of superficial thinking, with the ‘ending red tape’ and ‘row with Brussels’ lines that are the substitute for any serious policy thought.

In fact, the rows will not be with Brussels – the European Union and its businesses will be at ease with the United Kingdom erecting yet another non-tariff barrier against the interests of British businesses.

The rows instead will be with those British businesses, which will now have two lots of red tape to negotiate instead of one.

This is so bleedingly obvious that it really should not need typing out.

None of this is to say that the GDPR is perfect legislation – it certainly is not.

But compliance with one technical and complicated regime is onerous enough – multiplying such regimes just because we can is folly.

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Ministers and their political and media supporters will clap and cheer at this exercise in nose-cutting in spite of a face.

The European Union, like bemused household cats, will just stare at the spectacle.

It is all rather silly, and rather depressing.

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The United Kingdom’s digital economy will not so much turbocharged but torpedoed.

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Why ministerial resignations and sackings are often a substitute for genuine accountability for policy failures

22nd August 2021

A couple of days ago the post on this blog was about Dominic Raab and ministerial resignations.

In that post I averred that this clamour for a ministerial resignation tells us three things: that the minister had enemies within government (else the incriminating material would not be available); that the press was not protecting the minister; and that there was sufficient interest from the public for the issue to be subject of so many news reports.

The one thing the clamour did not tell us – at least directly – was whether the minister had actually done anything wrong.

And ministers get things wrong all the time – it is just that the relevant material is not disclosed and/or the press do not join the attack and/or few outside Westminster would be interested.

Accordingly, a sustained clamour for a ministerial resignation will always tend to tell you more about political weakness rather than policy failure.

In essence: a political scandal is a function of having political or media enemies and not of policy incompetence.

Now, I want to develop this point to say that even when there is a resignation, this is not an especially practical form of accountability.

The failures that may have prompted the resignation will usually still be there – and the catharsis of the resignation may change the political mood, but may not mean any substantial change, still less redress or compensation for those affected.

The minister who has resigned often does not have any long-term adverse effects to their political career – and after a suitable period, they will often resume their senior political roles – sometimes again and again.

In this way, a ministerial resignation is too often not an exercise in accountability – but a substitute for it.

The resignations – which now can have a ritualistic quality – are what the political and media classes do to pretend to themselves and others that there is accountability within our political system.

‘there are calls on [x] to resign’

‘there is increasing pressure on [x] to resign’

‘[x] has resigned’

[…]

‘[x] returns to office’

And nothing else changes.

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More effective accountability would be for [x] to stay in office, and account for failures and the reasons for the failures on the floor of the house of commons and before select committees, to appear before relevant public inquiries, and to co-operate with bodies such as the national audit office.

That is for ministers to own their mistakes and to, well, account for them – for that is the very meaning of that word: accountability.

But we get none of this, and we get cosmetic personnel changes instead.

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Much the same as the above can also be said for ministerial sackings.

Again, this is often political theatre – even soap opera.

Little if anything actually changes with a sacking, little is accounted for.

Some political drama, perhaps, that is forgotten in a day or two.

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Dismissals and resignations are, of course, part of any system of accountability – as resorts and sanctions.

But they are not the entirety of any meaningful form of political accountability.

For meaningful political accountability is the last thing any politician actually wants.

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The thin threads of power – politics and policy in an age of impotence

17th August 2021

When I was at school in the 1980s, the well-meaning progressive teachers showed us the film Threads.

The purpose, no doubt, was to make us pupils think critically about the cold war and the (then) nuclear arms race.

The primary impact it had on me was, however, different – and this was because of how the film portrayed the telephones in the bunker.

The film gave me a life-long fascination about the nature of practical political authority and control.

Here on YouTube some helpful person has put together the bunker scenes from the film:

If you watch these scenes with special regard to the telephones, you will see the telephones going from an active means of communication, to an inactive means, to being discarded, and then to finally damaged beyond repair.

And this matches the collapsing political authority of those in the bunker.

To begin with there are other people at the end of the telephone, and then there is nobody, and then ultimately nobody cares – or knows.

The political authority of those in the bunker, like the communications, is cut off.

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The lesson I learned from this as a pupil was it was not enough to have people who want to be in control and to believe themselves to be in control – there also had to be infrastructure, and for there to be people to accept that control.

Without such infrastructure and deference, those ‘in control’ are akin to the motorist wriggling a gear stick or pressing the brakes when both have been disconnected.

Those ‘in control’ may as well be playing with some grand political simulator.

And so I became interested in processes and transmissions and logistics and policies and rules and laws, and less interested in personalities and partisanship.

To answer the question: just what happens when the telephone rings out but it is not answered?

I suspect that this not the intention of the film makers, or the teachers.

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I mention this because of the impotence many in the West now feel about the fall of Kabul.

There is a general sense that something should have been done.

Here is our current foreign secretary:

The phrase “no one saw this coming” could be the motto of the United Kingdom government since at least 2016.

And here is Susie Dent, the subtle genius who no doubt will be regarded by future historians as the best political commentator of our age:

All true: but even if we had the foresight, what could have been done?

Of course: the execution of the final departures could have been better.

But beyond the arrangements for the final exit, it is difficult to see what further control the West could have had.

And part of the problem for the United Kingdom is that not only do we have no control, we also have no meaningful policy for what we could do.

Here, there are some hard truths on the lack of any meaningful United Kingdom policy in this RUSI post:

‘This week’s ignominy may be set instead against some of the blithe statements made just six months ago in the Integrated Review: that the UK will be ‘a problem-solving and burden-sharing nation’; that it already demonstrates a ‘willingness to confront serious challenges and the ability to turn the dial on international issues of consequence’; that the UK will embody ‘a sharper and more dynamic focus in order to adapt to a more competitive and fluid international environment’; and that it will ‘shape the international order of the future’.

‘The UK’s Afghanistan experience demonstrates none of this.

‘Instead, it speaks to a generation of political leaders who have too easily fooled themselves that being Washington’s most reliable military ally constitutes in itself an effective national strategy.

‘Such a relationship may be one element of an effective strategy, but it cannot simply be the strategy.’

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Yesterday this blog looked back to a 2017 Financial Times post where I put the old calls for ‘regime change’ together with other simple notions from the first part of this century, as part of a general politics of easy answers:

Since 2017, with the ongoing experience of Brexit but also with Covid and many other things, we still see the politics of easy answers.

The sense that all that needs to be done when something must be done is for politicians to want it to be done.

The hard and complicated work of policy and (meaningful) strategy is often not even an afterthought.

We have politicians in their modern-day bunkers, thinking that having telephones to hand will be enough for their will to be done.

But political power hangs on, well, threads.

And those threads snap easily, if they exist at all.

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