Category: Liberalism and Illiberalism

Why Raab’s frontal attack on the Human Rights Act failed, and why the Home Office attack on human rights law is succeeding

25th April 2023

One big error by the former Lord Chancellor Dominic Raab was how he went about dealing with human rights law.

Raab insisted on outright repeal of the Human Rights Act 1998, and nothing else.

As this blog has previously averred, the Act was the Moby Dick to his Captain Ahab.

The Act had to go.

And this approach failed, even from an illiberal perspective.

For the Human Rights Act 1998 is still there, and Raab is not.

A more effective approach from an illiberal perspective is not the full repeal of the Act, but to slowly bit-by-bit reduce its effect and restrict its scope.

Take this simple clause 1(5) from the Illegal Migration Bill:

That is all that needs to be done.

For the Human Rights Act 1998 is only a statute, and what one statute provides another can take away.

The Act does not, from an illiberal perspective, need to be repealed: it can instead be subjected to dozens of similar “notwithstanding” clauses, in new legislation and amending old legislation.

There is no point in saying: don’t tell the government this!

Those in the government already know – that is why the Home Office lawyers have put that clause in the Bill.

They do not need Raab’s cavalry charge of full repeal: they can be more effective operating on the flanks, picking off targets as they choose.

Of course, if the government goes too far there may, perhaps, be an adverse adjudication by the European Court of Human Rights on such legislation.

But that would be a cost of government business, sometime down the road, and not something to prevent putting in such clauses now.

And the pushback against such clauses will be harder than defending an entire Act from repeal.

The government can and will be more savvy in its illiberalism.

And this is far more concerning, from a liberal perspective, than Raab’s futile whale-hunt.

The Human Rights Act 1998 may now be safe from repeal, but the reach of human rights law in primary legislation is certainly not safe from attack.

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New Essay at Substack: Perhaps the most significant UK constitutional case of the last fifty years

6th January 2023

Over at my new law and lore Substack, I have published an essay for paying subscribers on how the Malone case of 1979-1985 exposed the lie of our supposedly liberal constitution and changed the way we were governed.

The essay starts as follows:

Consider this simple, attractive proposition: in the United Kingdom, you are free to do as you will, unless there is a law against it.

What could be wrong with such a nice proposition: it is almost a perfect articulation of principled liberalism.

But.

This proposition can have a hidden and ugly implication.

For it also can mean that the State can do as it wishes, to you and other people, unless there is a law against it.

And the case which exposed this unpleasant truth – and helped put an end to it, so that the State was required to have a legal basis for interfering with our lives – is the 1979-85 case of Malone.

This is the story of that case, and of its effects.

You can read the rest of the essay with a paid subscription here.

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For those who subscribe and donate through either Patreon or PayPal, please leave a “PRIVATE” comment below confirming you want me to add your email address to the Substack system so you can have a one-year complementary subscription to the law and lore Substack.

It is important that nobody pays “twice” for my content.

Re-visiting the “codified constitution” debate after the Johnson and Truss premierships

26th October 2022

From time to time it is worth revisiting the question of whether we should have a codified constitution.

For many the answer is self-evident.

Indeed, one sometimes cannot imagine a political situation in the United Kingdom where somebody, somewhere would not add “and this shows why we need a written constitution”, as if it were some universal panacea.

The view of this blog, as you may know, is more sceptical.

There is nothing inherently good or bad about a codified constitution: the test is is whether the constitution is liberal or illiberal.

In other words: whether or not the constitution tends to permit unchecked and unbalanced executive, judicial or legislative power.

Those constitutions which do not check and balance such powers tend to be illiberal, and those which do tend to check and balance such powers tend to be liberal.

The test, for me, of a constitution is not whether it is codified or not, but whether it is liberal.

And if we were to somehow have a codified constitution it should be at least as liberal as the current uncodified constitutional arrangements.

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So: are our current constitutional arrangements liberal?

Some of you reading this will have Very Strong Opinions – and are undoubtedly and impatiently scrolling through this irksome post.

But.

Take a moment.

Here are three counter points to consider.

First, during Brexit, the Supreme Court twice stopped the executive from acting against the rights of parliament, in the two Miller cases.  And parliament itself was able to legislate for the Benn Act in the face of opposition from the executive.

Second, since 2016 the body politic has been able to regurgitate and spit out a sequence of Prime Ministers and other ministers who have been repugnant for one reason or another – Cameron, May, Johnson, Truss, and so on.

And third, and notwithstanding the nominal overall majority, we have ended up with, in effect, a hung parliament anyway.

If we were to have a more rigid, codified constitution that entrenches executive power, none of these things may have been the case.

We could, like in the United States, be stuck with a Trump-like politician for a term with only the clumsy and practically useless weapon of impeachment.

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That said, there are problems.

For example – yes, we have been able to spit out a succession of repugnant politicians, but it is hardly to the credit of our constitutional arrangements that we have had such figures becoming Prime Minister in the first place.

And we are still only one competent tyrant (and a parliamentary majority) away from the “supremacy of parliament” being used to create Enabling Acts conferring wide discretionary powers on minsters that courts will have to accepts as being unchallengeable.

Our constitutional arrangements may be liberal in some respects, but there is still the scope for abuse, as well as it providing a framework for inadequate politicians to take (as well as lose) powerful jobs.

And recent years have shown the limits of the “good chap” approach of ministerial self-restraint, with Johnsonian anything-goes.

The counter-case is strong.

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So there are reasons to be in favour of our current constitutional arrangements, but also reasons to be worried.

The next two years are, from a liberal and progressive perspective, likely to be grim – especially if the new Prime Minister and his cabinet are alert to avoiding the unforced errors of the last two Prime Ministers, and are able to “deliver” (ahem) their policy agenda.

We cannot always trust illiberal ministers to make easy mistakes.

And the next two years will be the real test of whether our constitutional arrangements are robust as well as liberal.

Brace, brace.

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The dropping of “The Bill of Rights” – and why it is both good and bad news

7th September 2022

The Human Rights Act 1998 is still in place.

And Dominic Raab is not.

Raab was three times a minister at the Ministry of Justice, and his personal and political priority was the repeal of the Act.

The legislation was the Moby Dick to his Captain Ahab.

But the whale has swum away again.

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Raab’s latest attempt to repeal the Act was the so-called “Bill of Rights”.

When this was published my reaction was that it was a dud and a misdirection.

In essence, the rights under the European Convention on Human Rights would still be enforceable in domestic law, but there would be lots of provisions to make such enforcement more difficult in practical situations.

The United Kingdom cannot leave the ECHR without breaching the Good Friday Agreement – and so the “Bill of Rights” was a cynical attempt to make it look like something fundamental was happening when it was not.

Given the MoJ is facing chaos and crises in the prison and criminal justice systems, it seemed an odd priority for scarce ministerial and civil servant resources, as well as a waste of parliamentary time.

And this was especially the case when repealing the Act was not even in the 2019 Conservative manifesto, and so such a move was likely to be blocked or delayed by the House of Lords.

It was difficult to conceive of a greater exercise in pointlessness.

But, for Raab, the Act had to be repealed.

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“All that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick.”

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And now today, on the first full day of the new Prime Minister’s time in office, we read that the “Bill of Rights” is no more:

This revelation has the ring of truth.

The “Bill of Rights” is dead.

And so…

…Hurrah.

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But.

The cheers cannot last for too long.

For this further news is also important:

The quoted statement may look like verbiage – but it signals something important.

The “Bill of Rights” was always going to be a clumsy vehicle for all the illiberal provisions the government would like to have so as to make it more practically difficult to enforce convention rights.

And so instead of putting many of these illiberal provisions in one big bill that was likely to fail, the same illiberal ends will now be achieved in other ways.

These moves will be driven mainly by the Home Office, and not the MoJ.

This is a canny move by the government – even if it is an unwelcome one from a liberal perspective.

The claps and congratulations about the “Bill of Rights” being dropped should therefore not last too long.

The government is just going to seek the limit the benefits and protections of the Act in other, less blatant ways.

Dominic Raab and his “Bill of Rights” may have gone.

But the need to be vigilant about what the government wants to do with our Convention rights has not gone at all.

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Is this an abuse of the law of contempt of court?

5th August 2022

I came across a case on BAILLI which I read with increasing concern, indeed dismay.

I had somehow missed the relevant litigation being reported in the news, and so I did not know anything of the case, so I came to the case report fresh.

And I could not believe what I was reading.

I am sharing it with followers of this blog now, for I am thinking about writing about the case in detail.

The case is about contempt of court – and, in particular, what a court can be asked to do by a party with an injunction against those who (supposedly) breach that injunction.

The courts of England and Wales take contempt of court seriously – very seriously – especially in respect of parties breaching the orders of the court.

Indeed, it often seems that courts take contempt of court more seriously in respect of parties breaching the orders of the court than the court will do if a party breaches a legal obligation to any other party.

But this case seems to show how contempt of court this can be abused by the injuncting party

The impression I gained on reading this case was that the injuncting party were, in effect, weaponising and misusing contempt of court for private, commercial advantage – to the effect one could discern any motivation behind what they were doing at all.

The application seemed either spiteful or irrational – for a bad reason or for no reason.

And certainly not for any good reason.

The judge was not having any of it, and these two paragraphs give a flavour of the judgment:

Before I devote the time and energy (and opportunity cost) to writing about the case, I should be grateful for the views of those following this blog.

Is this a case worth a close reading?

Is this an (attempted) abuse of power which should be be brought to a wider audience?

Or is this a storm in a lawyer’s tea cup?

Does the fact that a judge sorted it out in the end mean that nothing really untoward here happened which could not be cured?

I am currently considering writing a detailed step-by-step critique of what the injunction party sought to do here – as it seems to me to be, on the facts, vindictive and a gross misuse of the court.

I also think, in general, there must be a change so that injunctions against “persons unknown”, after this case, always require the leave of the court.

There is a Law Gazette news report here.

And Adam Wagner has done a Twitter thread here:

Let me know what you think.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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My new FT Video: constitutionalism and the reversal of Roe v Wade

12th July 2022

This blog is written from a liberal constitutionalist perspective.

But like “country” and “western”, liberalism and constitutionalism are not the same thing, even though the coupling works well in practice.

Take for example the abortion issue.

From a liberal perspective, the issue is about who makes the decision.

The decision here being whether a woman can have access to a safe abortion or whether she should be forced to continue with an unwanted pregnancy.

The liberal will consider that the decision – at least before late in the pregnancy – should be that of the woman, in consultation with her doctors.

Others, however, will insist that the decision should absolutely not be that of the woman concerned, but should be decided on her behalf by a legislature.

But.

Believing that the decision should be that of the woman concerned does not, in and of itself, tell you how the constitutional and legal system should provide for that right.

And one can be a conservative constitutionalist as well as a liberal constitutionalist, as constitutionalism is about believing there should be rules and principles that provide the parameters of political and legal action.

In the United Kingdom – and now including Northern Ireland – the right to an abortion is not a constitutional right, or it is not usually considered as such.

It is a legal right provided for by statute.

In the United States it was not possible to enact similar legislation that would cover all Americans, not least because of the disproportionate power many conservative but less populous states have in the federal legislature.

So the route taken by those in favour of a right to abortion was to litigate so that the United Supreme Court found that the right to an abortion was a constitutional right.

And the Supreme Court found that there was such a right in 1973.

Then, a couple of weeks or so ago, a differently constituted Supreme Court found there was not such a right.

Over at the Financial Times I have done a video setting out this constitutional journey.

The video is also on YouTube:

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Many of you will have strong opinions about abortion – I certainly do – but the focus of this blog and and any comments below is on how the issue is or should be dealt with as a matter of law.

The United States took a constitutionalist and judicial approach, not least because there was no other United States-wide approach that would work.

But what one Supreme Court can give, another Supreme Court can take away.

And so it was always a precarious basis for such an important right.

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The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

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The outlaw ministry

12th May 2022

From time to time on social media you will get people asking about the difference between something being ‘unlawful’ and being ‘illegal’.

And whenever this happens you will invariably get some wacky funster replying that the difference is that one means someone is acting outside the law and the other is a sick bird.

Ho ho, every time.

But.

The real problem with this government is not that it acts unlawfully or illegally.

The problem is that it acts as if it is an outlaw – that for the government, law does not apply in the first place.

It is not so much that the government cares about breaking any law, or about whether it has any legal basis for what it does.

Instead, the government does not see law as even applying to it.

To use a lovely Scottish word – the government acts as if it is ‘outwith’ the law.

The law applies to little people, and not this government.

‘Law and Order’ is a campaigning slogan, but not a principle of government.

As this blog has previously averred, this government engages in three types of lawlessness.

First, it often conducts itself without any lawful basis.

Second, it seeks to introduce legislation that will enable it to freely break the law.

Third, it permits law-breaking at the highest level.

It is difficult to imagine a government with less respect for law, and for the rule of law.

This is not so much a government of law breakers, but a government of outlaws.

The law is an inconvenience which can be disregarded as and when it is inconvenient.

Such an approach has its hedonistic attractions, but it cannot end well.

Brace, brace.

 

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The real problem with Beergate – and with Partygate

9th May 2022

There are many ways to look at the ‘Beergate’ political story – about the police investigation into what Leader of the Opposition did and did not do at (or after) a campaign function.

One way is to follow the political soap opera – and to ponder if the Leader of the Opposition will resign if he faces a penalty, if this will then backfire on the government supporters who have made this such a political story, and if voters will get tired and dismiss this and ‘Partygate’ with the shrug that says ‘they are all the same’.

Another way is to anxiously scrutinise the applicable law and to query whether the gathering was for work purposes or not.

And there is a third way, which requires stepping back to wonder if something more significant is going on.

Do ‘Partygate’ and ‘Beergate’ signify a shift in standard political tactics towards using reports to the police of one’s political opponents and encouraging investigations and sanctions?

For it is one thing to campaign against one’s political opponents.

But it seems another to actively seek that they face police attention.

Of course, from time to time – and in a society under the rule of law – politicians will get arrested, prosecuted, convicted and punished.

And that can be in respect of ‘political’ offences – such as regulate electoral matters – or more straightforward criminal activity.

Sometimes such investigations may have potentially important political implications – such as the cash for honours scandal about fifteen years ago, or the more recent parliamentary expenses scandals.

But in each of these cases, the involvement of the police seemed exceptional – and not part of the mundane, day-to-day politicking of Westminster.

And generally it seemed police involvement was not weaponised for political advantage (though there were one or two exceptions of minor Members of Parliament who liked referring matters to Scotland Yard).

Now, however, police involvement could not be more central to politics.

The fate of the Prime Minister and of the Leader of the Opposition depend, in part, on exercises of police discretion.

Not even a court is involved – just decisions of police officers as to whether it is reasonable to believe covid rules were broken.

(It would only become a matter for the courts if those police decisions are not accepted.)

Perhaps all this is just a one-off – just an extraordinary result of intrusive pandemic regulations that are no longer in place.

Or perhaps this marks a shift to using police involvement as a regular aspect of political activity.

So before we get carried away – one way or another – with clamouring for penalties to be imposed on which politicians you like least, perhaps we should think about where this is going.

For it may not be a good place for our politics to go.

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Macron’s victory – and the ongoing predicament of liberalism

25th April 2022

For some the victory of Emmanuel Macron in France is not enough.

The victory over his illiberal opponent was not sufficiently crushing.

He is not an especially liberal politician himself.

And his illiberal opponents may do well in elections to come.

But.

An implicit assumption of those holding such views is perhaps that a ‘once-and-for-all’ blow could somehow be struck, knocking out the illiberals.

Unfortunately, like the poor, the illiberals will always be there.

The horrors of mid-twentieth century authoritarianism was not the only manifestation of illiberalism.

Nazism and Fascism were not the classic form of such illiberalism, but how it formed in certain places at certain times.

The price of liberalism, like that of liberty, is eternal vigilance.

And so: when there are wins, like there was in France – and Slovenia – yesterday, there is nothing wrong with cherishing and celebrating such victories.

But such elations and rejoicing are necessarily short-lived, for pretty soon liberalism is going to have to politically defend itself all over again.

And again, and again.

For if liberals – and progressives – become complacent, and think that history has ended with the right side winning, then you next get resurgent illiberalism – as in the United States and elsewhere.

The contest of liberalism and illiberalism is a struggle without end.

So after the claps and cheers, we return to the position of brace, brace, and we do what we can to avoid the crashes to come.

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Thank you for reading – and please support this blog so that it can carry on.

These free-to-read law and policy posts every week day take time and opportunity cost to put together, as do the comments to moderate.

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