Category: Ministry of Justice

The significance of the resignation of Dominic Raab

21st April 2023

The end, when it came, was not pretty.  But then again, endings rarely are.

The resignation letter was extraordinary:

The impression was that the letter was drafted in a rush – the sort of draft one would put together to get something out of one’s system, before composing something more measured.

The letter was accompanied by a 1,100 word piece in the Telegraph which was published eighty-or-so minutes later:

As a published article, it presumably would have been commissioned, edited and lawyered before publication – and so it may have been written before the letter.

But it said much the same.

One remarkable thing was that both the letter and the published article were in the public domain before the actual report – presumably to “frame the narrative” as a political pundit would put it.

And then the report was published:

And it became obvious why Raab was so anxious to “frame the narrative”– as parts of the report were, as a lawyer would put it, “adverse”.

This did not seem to be the usual, coordinated exchange of letters with a prime minister, which one would expect with such a senior resignation.

Instead, it looked a mess.

And one can only wonder about how this mess relates to the unexpected delay from yesterday, which was when the report was expected to be published and the prime minister was expected to make a decision.

What seems plain, however, is that Raab was pressed into a resignation.

If so, there is a certain irony, as it was the threatening of unpleasant outcomes to people who did not comply with his wishes/demands which was the subject matter of some of the complaints.

It therefore appears that Rishi Sunak was more skilful in this cost-benefit power-play than Raab.

In his resignation letter, Raab twice warns of the “dangerous” outcome if he did not get to continue on his way.

But in practice, Sunak by being silent and not “clearing” Raab yesterday placed Raab in an increasingly difficult situation, where it was becoming obvious even to Raab that unless he resigned he would be sacked.

Some may complain that Sunak “dithered” – but another analysis is that this former head boy and city banker patiently out-Raabed the school-cum-office bully.

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Beginnings, like endings, are also often not pretty.  And rarely are they ideal.

But, at last, the Ministry of Justice is free from perhaps the worst Lord Chancellor of modern times.

(Yes, worse even than Christopher Grayling or Elizabeth Truss.)

Over at his substack, Joshua Rozenberg has done an outstanding post on why – in substantial policy and administrative terms – Raab was just so bad.

And on Twitter, the fine former BBC correspondent Danny Shaw has also detailed the many failings in this thread:

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The Ministry of Justice is in an awful state.

The departing minister’s obsession with prioritising symbolic legislation such as the supposed “Bill of Rights” and a “Victims” Bill – which mainly comprises the shallow sort of stuff too often connected to the word “enshrining” – was demonstrative of the lack of proper direction for the ministry.

And it is significant that it was only during the interruption of the Truss premiership, with a new (if temporary) Lord Chancellor that the barristers’ strike was resolved.

Joshua Rozenberg sums up that telling situation perfectly:

“We saw an example of Raab’s indecisiveness in the way handled the strike by criminal defence barristers last summer. Increasing delays — caused initially by government-imposed limits on the number of days that judges could sit — were rapidly becoming much worse.

“Raab seemed like a rabbit frozen in the headlights, unable to decide which way to turn. The problem was solved by Brandon Lewis, who replaced Raab for seven weeks while Liz Truss was prime minister. He simply paid the barristers some more money.

“It was not so much that Raab was ideologically opposed to making a pay offer. On his return to office, he made no attempt to undermine the pay deal reached by Lewis. It’s just that he seemed unable to take a decision.”

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Now decisions can be made.

Gesture-ridden draft legislation can be abandoned.

And the grunt-work of actually administering our courts and prisons and probation service can take place.

That grunt-work will also not be pretty, and the incoming Lord Chancellor will not get easy claps and cheers that come with attacking “lefty” lawyers and “woke” judges.

But a new start can be made, and all people of good sense should wish the new Lord Chancellor well.

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Here we go again: Raab returns to the Ministry of Justice

25th October 2022

When Dominic Raab left the Ministry of Justice when Elizabeth Truss became Prime Minister, the blog teased that the Human Rights Act was still there and Raab was not.

Well.

Raab has today returned to the Ministry of Justice as Secretary of State and Lord Chancellor (and Deputy Prime Minister).

And this means things do not look good for the Human Rights Act.

As this blog has previously averred, the Human Rights Act is Moby Dick to Raab’s Captain Ahab:

And so when Raab went, it seemed the Act was safe.

The new Truss administration dropped the “Bill of Rights”, a dreadful mess of a Bill.

That reversal was, it seems, the price exacted by Robert Buckland, the former Lord Chancellor, for serving as Welsh Secretary in Truss’s cabinet.

But earlier today, Buckland announced he was leaving the cabinet under the new Prime Minister Rushi Sunak:

Buckland’s letter refers to a meeting, and one wonders if he again asked for an assurance about the Human Rights Act – and, if so, what the answer was.

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While Raab was away, his replacement Brandon Lewis had the confidence and sense to negotiate a resolution to the strike by criminal barristers.

It is unlikely that resolution would have happened had Raab stayed on, and it should not be taken for granted that action by criminal lawyers has come to an end.

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As this blog has previous stated, those who sneer at Raab for not understanding human rights law are wrong.

It is that he does understand it – he just does not care for it.

And this makes him a more formidable opponent to liberals and progressives than someone who is merely ignorant of the applicable law.

We do not know yet whether Raab will now seek to revive the “Bill of Rights” many of us had assumed would pass into oblivion.

There are at least two years left of this parliament and so there is perhaps enough time for him to have a go at forcing the Bill through if he can, regardless of any backbench worries.

He may have difficulty in the House of Lords, however, as the 2019 Conservative Manifesto stopped short of promising to repeal the Human Rights Act.

But for Raab this is unfinished business, and so such an attempt is more than likely.

And for those who have a liberal or progressive interest in the law, we are again that fabled bowl of petunias:

“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was Oh no, not again.”

Oh no, not again.

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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.

*

“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.”

*

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.

*

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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“Oh no, not again” – the story of the Human Rights Act and of the new “Bill of Rights”

23rd June 2022

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“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was ‘Oh no, not again’.”

– Douglas Adams, The Hitchhikers Guide to the Galaxy

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Legal and constitutional commentators are the petunias of the modern age.

The current bout of constitutional excitements started in around 2015, and these excitements have carried on relentlessly since.

Again and again the government has threatened to do something – or done something – drastic in respect of our constitutional arrangements.

Seven or so years later it is rather exhausting to keep up.

And giving up is tempting.

But keep up we must, as these are serious matters – even if government and its political and media supporters do not take them seriously.

For the political and media supporters of government will clap and cheer at each of these constitutional disturbances – and will delight in the ‘libs’ being ‘owned’.

Well, this ‘lib’ is more bored than owned.

But commentary must be offered, if only as a corrective to the narratives of those currently in power and those who support them.

And so this is the story of the Human Rights Act 1998 and the supposed “Bill of Rights” with which the government wants to replace it.

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Before the Second World War, a certain sort of English person would have boasted not of having rights but of having liberties.

The notion was that an English person was free to do whatever they wish, unless it was prohibited.

The self-image was of a robust anti-authoritarianism – and it was an image which gained wide purchase.

And to an extent it was a fair depiction – the powers of the Crown had generally been made subject to Parliament, and most exercises of state power could be contested before a court.

But.

The Victorian doctrine of parliamentary supremacy – which asserted that Parliament could make or un-make any power it wanted – had as an unfortunate implication that the subject was powerless in the face of a determined executive dominating the legislature.

This implication was noticed by, among others, a Lord Chief Justice – Lord Hewitt – who in 1929 published The New Despotism warning of the illiberal power of the British state.

And in the Second World War what Hewitt warned of in theory was carried out in practice with the government’s use of the defence regulations.

For all the comforting self-image, there was not in practice robust English liberties that would actually protect the subject against the king’s government – let alone the citizen against the state.

Perhaps there never had been.

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Following the Second World War there was a spate of international conferences and organisations that purported to declare and protect rights.

One of these, of course, was the European Convention on Human Rights.

This convention provided for a number of rights, contained in articles.

Some of the rights were set out in the original convention, and some were added in later protocols.

The convention was connected to the Council of Europe, which now comprises most European states:

By being party to the convention, a country agrees to be bound by the convention as a matter of international law.

Some claim that the convention was promoted by Winston Churchill and drafted by Conservative lawyers – but their contribution should not be overstated (see this fine book for what did happen).

The United Kingdom at the time the convention was ratified in 1951 did not see the convention as controversial or as being inconsistent with domestic law.

The convention did not only provide for rights but it also established a court to determine whether any signatory – as a matter of international law – was in breach of its obligations under the convention.

That court is the European Court of Human Rights in Strasbourg, of which you may have heard.

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What happened next is not widely known.

As is described in a House of Commons library paper:

“Although the UK ratified the European Convention on Human Rights in 1951, it was 1965 before the UK Government declared, by an option under then Article 25 of the Convention, that it would accept the jurisdiction of the Court in relation to individual complaints. The optional clause was debated in late 1980, amid charges that the Court was “interfering with the exercise of parliamentary sovereignty” and “limiting [the UK’s] freedom of action”, but in 1981 and subsequently it was accepted for five more years. In 1994, during the negotiation of Protocol 11, the UK tried in vain to ensure that the right of individual petition would remain optional. The Government thought the Court had too much power, and the possibility of non-renewal of individual petition would act as a check on its authority.”

The United Kingdom did not allow anyone to actually petition the Strasbourg court until 1964.

And until relatively recently – the mid-1990s – governments of all parties resisted the reach of the Strasbourg court.

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This resistance had the following effects.

First, it created immense costs and delays for individuals who wanted the United Kingdom to comply with its international obligations.

For example, in the case of Malone – in my view, one of the most important constitutional cases in the last hundred years – a 1977 incident did not reach a Strasbourg judgment until 1984.

There the Strasbourg court held that any surveillance of the individual by the state had to have a lawful basis.

The English court had held, in effect, that just as it was open to any subject to do as they wish unless prohibited, it was also open to state bodies to do as they wished unless prohibited.

That’s robust English liberties, for you.

The Malone decision in turn led to the United Kingdom placing its surveillance regime onto a legal – and thereby legally contestable basis.

But it took seven years for the judgment to happen.

Second, it meant that lawyers developed various means of referring to Strasbourg jurisprudence in domestic courts.

I remember seeing this article as a law student in the mid-1990s:

By then it was getting rather silly.

A United Kingdom litigant seeking to rely on their convention rights had to go to the cost and delays of going to Strasbourg, or had to find a clever lawlerly way of relying on Strasbourg caselaw in a domestic case.

But what that litigant could not do is rely on their convention rights in a straightforward way before the domestic courts – even though the United Kingdom was bound by the convention (and by the Strasbourg court’s interpretation of the convention) as a matter of international law.

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And then, in 1997, the electorate of the United Kingdom returned a Labour government:

Things could only get better, or so people thought.

And one thing the government did to make things better was to introduce legislation so that the convention could be relied on in domestic courts.

This would not only solve the increasingly absurd problem of the costs and delays of individual petition and indirect reliance, it also gave effect to a key provision of the Good Friday Agreement which was signed in April 1998.

One of the express bases of that agreement was that the convention had to be capable of being directly enforced in the courts of Northern Ireland – in particular against the Northern Irish Assembly:

And so the Human Rights Act 1998 came into being, which allowed direct access to the courts for breaches of the convention, and not just for those in Northern Ireland.

As the government of the day boasted in an allusion to the popular football song: rights were brought home:

The Act took effect on 2 October 2000.

*

But.

The Human Rights Act never gained universal support.

This is for, I think, two main reasons.

First, the popular media disliked how English judges created an entirely new tort – misuse of private information – on the back of the 1998 Act.

The Act does not expressly provide for any such cause of action.

But case-by-case, the courts crafted a new basis for suing for breaches of privacy.

And the courts did not ‘develop’ the corresponding right of free expression in any comparable way.

Few reporters and editors came to see the Human Rights Act as an instrument that would protect them like their American counterparts who could point to their constitutional rights.

Second, the politics following 2001 and 9/11 pushed against human rights protections.

It is difficult to imagine the Human Rights Act being enacted after 2001 had it not been enacted before.

The Labour governments became more illiberal, as anti-terrorist act followed anti-terrorist act.

And by 2006:

Human rights may well have come home – but they were now unloved by the Act’s own parents.

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At this time, the then-opposition Conservatives were becoming even more opposed to the Human Rights Act than the Labour government.

So also in 2006:

The 2010 Conservative manifesto (twelve years ago):

“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the  Human Rights Act with a UK Bill of Rights.”

The 2015 Conservative manifesto (seven years ago):

“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”

The 2017 Conservative manifesto (five years ago) placed a foot on the ball:

“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”

And then most recently, in the 2019 Conservative manifesto:

“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”

As it happens the government elected on the back of that latest manifesto is not prosing to “update” the Human Rights Act but now to repeal it – at least in form.

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Alongside these manifesto commitments, there have been various attempts to find a practical way of repealing or updating the 1998 Act.

In 2011 there was a commission established by the government:

But this went nowhere.

In 2014 the then justice secretary launched a new attack at Conservative party conference.

And that went nowhere.

And in 2015-16, the then prime minister was again about to take on the Human Rights Act – and may well have done so but for Brexit:

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*

And now, in 2022, we have yet another attempt to repeal the Human Rights Act, twenty-five years after the Human Rights Bill was introduced by the incoming Labour government.

The difference now, however, is that the proposals have reached the stage of draft legislation before Parliament.

And the justice secretary proposing the new legislation, Dominic Raab, is a long-term opponent of the Human Rights Act and was the junior justice minister under Cameron responsible charged with finding an alternative to the Act.

In effect, the Human Rights Act is Moby Dick to Raab’s Captain Ahab.

It does not matter that the criminal justice system is in crisis, scarce ministerial time and departmental resources will be devoted to repealing the 1998 Act.

*

The 1998 Act is unlikely to survive this assault.

There is enough time for the bill to pass before the next general election, and there is sheer determination to get the bill through.

But.

The essentials of the Act will remain.

The Good Friday Agreement will still require that the convention can be given direct effect in the courts of Northern Ireland.

The United Kingdom will still be bound by the convention as a matter of international law.

If the domestic courts do not protect convention rights then litigants can still go to Strasbourg.

The United Kingdom will still be required to comply with the decisions of the Strasbourg court.

And resourceful lawyers – and judges – will still find ways of referring to Strasbourg jurisprudence in domestic courts when determining convention rights.

And so one consequence of the new bill is that cost and expense will be added to the process of relying on convention rights under a treaty that will still bind the United Kingdom under international law.

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As this blog set out yesterday, the core of the new bill is the same as the 1998 Act.

The convention rights are still listed in the schedule; the definition of convention rights is the same; and the key obligation on public authorities to comply with the convention is also the same.

What the bill does is to introduce a number of provisions that will make it far more difficult for litigants to rely on those rights in domestic courts.

Over at the blog of Professor Mark Elliott there is an outstanding post – written within a day of the publication of the new bill – that details all the new legislative contraptions and devices, the purpose of which is to inconvenience the litigant seeking to rely on their convention rights.

Elliott’s post should be read and circulated as widely as possible.

And Elliott’s conclusion is compelling:

“the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights.”

And this is why – jaded and fatigued as any sensible person must be who is keeping up with this government’s ongoing attack on our constitutional arrangements – we have to be vigilant about this latest exercise in limiting the ability of individuals to rely on rights which the United Kingdom is bound to protect by international law.

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The government is not – and cannot – take the United Kingdom out of the European Convention of Human Rights – at least not without breaching the Good Friday Agreement.

The government is still obliged to give effect under international law to the rights contained in convention – and individuals will still have the right to petition the court.

But after twenty years of trying, the current government party has put forward the means of attacking the Human Rights Act by limiting the ready enforcement of these rights by individuals.

And so as a bowl of petunias once no doubt thought: brace, brace.

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This is not a proposal for “a Bill of Rights” – this is semi-waffle in support of vanity legislation

10th May 2022

Today it was announced in the Queen’s Speech that there will be a “Bill of Rights”.

Some are alarmed at this proposal – and warn darkly (and perhaps correctly) that this will be a fundamental attack on the Human Rights Act 1998 and on the protections we have under the European Convention on Human Rights (ECHR), to which that Act gives effect in domestic law.

One plausible consequence of the proposal is that there will no longer be a a law called ‘the Human Rights Act’ in our statute books.

This post, however, will take a sightly different approach.

This post is one more of derision than of alarm.

For the proposal set out today is all rather pathetic.

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Let us start with the Queen’s Speech.

The relevant portion of the speech was this:

“My Government will ensure the constitution is defended. My Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.”

There is already a Bill of Rights – at least in the law of England and Wales.

That law from 1688 or1689 (depending on how pedantic you affect to be) is famous and significant, and it is one of few ancient pieces of legislation that those with an interest in such things can name.

Any government bringing forward a new (or revised) Bill of Rights would presumably be proud, promoting the legislation as a highlight of its new parliamentary schedule.

But this latest “Bill of Rights”?

It was 800 words into a 940-word speech

Even in the accompanying briefing for journalists, it made only page 118 of a 140-page document.

The Bill is not so much an initiative, but an afterthought.

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And now we turn to content.

There is no real content.

The government has not published the proposed legislation, and indeed the Ministry of Justice (MoJ) is not in a position to publish the proposed legislation.

The MoJ told me today that the consultation on the reform only closed on 19 April and the responses are still being reviewed.

This lack of content can also be seen in the briefing note:

“The purpose of the Bill is to:

● Introduce a Bill of Rights which will ensure our human rights framework meets the needs of the society it serves and commands public confidence.

● End the abuse of the human rights framework and restore some common sense to our justice system.

The main benefits of the Bill would be:

● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate.

● Curbing the incremental expansion of a rights culture without proper democratic oversight, which has displaced due focus on personal responsibility and the public interest.

● Reducing unnecessary litigation and avoiding undue risk aversion for bodies delivering public services.

● Tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.

The main elements of the Bill are:

● Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.

● Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope for judicial legislation.

● Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant. 

● Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award.”

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These three groups of bullet-points – ‘purpose…main benefits…main elements’ – indicate padding, and indeed the bullet-points are interchangeable between the sections.

Almost none of the bullet-points are concrete.

If anything they are almost all talking-points.

Some are semi-meaningless waffle – “restore some common sense” and “responsibilities exist alongside rights” are slogans rather than thoughts.

And to the extent any of these bullet-points do have meaning, their import is not to protect rights but to limit rights.

This is not a “Bill of Rights” but a Bill to, as far as possible, remove or restrict rights.

Only one bullet-point – and you can check if you doubt me – is even positive about substantive rights: “● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate”.

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Most significant of all – and this is what the government wants you to miss – is that this Bill of Rights will not substantially affect the position of the ECHR in the United Kingdom.

And this is because the Good Friday Agreement requires the United Kingdom to give effect to the ECHR in Northern Ireland.

If you look carefully at the proposals, there is mention of making sure the courts do not go further than the ECHR – “UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court” – but there is not (express) mention of getting rid of the ECHR in domestic law or any (express) suggestion that the United Kingdom follow Russia in leaving the Council of Europe.

So this proposal is, in part, an exercise in misdirection – an attempt to make it look like the government is ending the Human Rights Act but pretty much keeping the ECHR in domestic law.

*

Perhaps the government will put forward a Bill with more concrete proposals.

Perhaps the Lord Chancellor – facing chaos and crises in the court and prisons systems – will achieve his own political priority of replacing the Human Rights Act with some law that does much the same with a different name, but with added (and pointless) tinkering.

Perhaps any of this is worth the effort of new primary legislation – where (if needed) any changes could be done by amendment to the existing legislation.

Perhaps.

But.

The impression given by this proposal is that the new “Bill of Rights” is legislation for the mere sake of legislation.

None of the bullet-points – you can check – individually or together add up to the need for a new statute – let alone something with as hallowed and grandiose a title as a “Bill of Rights”.

On the face of today’s proposals, this is mere vanity legislation.

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The Lord Chancellor’s extraordinary tweet about the Tracey Connelly case

6th May 2022

Here is a tweet from the Lord High Chancellor and Secretary of State for Justice (and a qualified solicitor):

It is a tweet that goes to one of the most important issues for any constitution: the respective powers of the executive and the judiciary in individual legal cases.

Tracey Connelly, as is widely known, was the mother of Peter Connelly, who died in 2007.

In 2008 she was convicted of “causing or allowing the death of a child or vulnerable person” – though not of murder or manslaughter – and she was sentenced to indefinite imprisonment for public protection, with a minimum term of five years.

It was reported that the then Attorney General considered referring the sentence to the Court of Appeal for being unduly lenient – but it seems no such referral was ever made, no doubt because the sentence was appropriate for the offence for which Connolly was actually convicted.

(Steven Barker was also convicted of this and another offence involving another child – and in respect of Peter Connolly’s death the sentence was for twelve years.)

That minimum of five years for Tracey Connelly expired in 2013 – and it appears she was released on licence from 2013-15 – but almost ten years later she is in prison.

This is because the Parole Board has, until recently, repeatedly refused her parole.

As the parole specialist Andrew Sperling explains in this useful and important thread, the test for the Parole Board is preventative rather than punitive:

Sperling also helpfully sets out that the Ministry of Justice participated in the Parole Board’s deliberations.

The Ministry of Justice officials all supported Connolly’s release.

This is the Lord Chancellor’s very own department.

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The Lord Chancellor even had the opportunity to challenge the Parole Board decision – and that was rejected.

In a fully reasoned and detailed decision, each of the Lord Chancellor’s grounds for his application were rejected.

The judgment even contained these remarkable paragraphs:

Ouch.

The Lord Chancellor – seriously – instructed counsel to say that the Parole Board had not taken proper account of his views, but he did not and could not identify what those views were.

That is embarrassingly bad.

*

The Lord Chancellor now wants to do things differently.

He wants to be able, as a politician and a minister, to personally overturn decisions of the Parole Board even when his own department’s officials support release.

Presumably this would be a power that would be exercised in those few cases that are selected by the media to be notorious.

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What is the Lord Chancellor’s motivation for wanting a ministerial veto?

Here, again, Sperling is spot on:

*

Let us look again at the extraordinary tweet of the Lord Chancellor:

There is no sensible doubt that the cruelty in the Connolly case was substantial and warranted significant punishment.

And the court sentenced her for that offence.

A sentence which the government did not (and probably could not) challenge at the time as being unduly lenient.

The question is whether it is now safe for Tracey Connelly now to be released.

That question has been considered, with reference to relevant material, by the Parole Board, an independent body, with input from the Lord Chancellor’s own officials.

An answer was then reached by the Parole Board, which the Lord Chancellor could and did challenge in court, and the the Parole Board’s answer survived that challenge.

And the answer the Parole Board reached was ‘yes’.

*

The issue is not that the executive should not have any role in questions of sentencing and probation in individual cases.

The executive should and does have a role.

The executive can refer seemingly unduly lenient sentences to the Court of Appeal.

The executive can make representations and submissions to the Parole Board.

The executive can apply so as to challenge a decision of the Parole Board.

This is how the separation of powers should and does work in practice.

Punishments should not be at the personal fiat of any minister, even that of the Lord High Chancellor.

**

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SLAPP and English courts – some preliminary issues

21st March 2022

SLAPP – strategic litigation against public participation – is a new-ish name for an age-old problem.

Here is L. Ron Hubbard in 1955 advocating law suits against those who were using Scientology materials without authorisation:

“The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly”

(The Scientologist: a Manual on the Dissemination of Material, page 157)

*

SLAPP is, of course, a pejorative term (as this blog recently averred) – but, for want of a better term, is the best name we have got for a certain thing.

The problem with SLAPP being a pejorative term is that, just as one person’s terrorist can be another person’s freedom fighter, one person’s SLAPP case is another person’s legitimate attempt to defend their reputation and/or privacy rights.

Few if any claimants will say expressly that their case is a SLAPP case – not many are as brazen as L. Ron Hubbard.

And it is possible that what one side considers to be a SLAPP case will genuinely not be considered to be a SLAPP case by the other side.

That said, SLAPP as a term has two useful qualities.

First, it is not limited to any one area of law – for example defamation – and so it implicitly recognises that various areas of law can be (mis)used – not only defamation but also misuse of private information, data protection, confidentiality, intellectual property rights, and so on.

Second, it indicates that certain decisions are being made strategically – or at least, tactically (though TLASS is a less handy acronym) – about the purpose to which law is being used.

Another problem, however, with SLAPP as a term is that its American origins may mislead people into thinking all anti-SLAPP legislation is the same.

In fact, much of what constitutes anti-SLAPP reform in the United States is already part of English law, including the ready availability of costs sanctions and early opportunities for meritless cases to be struck out.

There is no single anti-SLAPP reform that fits all jurisdictions.

So as long as the strengths and weaknesses of SLAPP as a term are borne in mind, it is the best description we have got of a certain thing.

*

But – what is that thing?

Well.

One thing it usually is not about is the law or procedural rules being broken by lawyers or their clients.

In almost all SLAPP cases, the lawyers are using the laws and court procedures available to them: the issue is the ulterior purpose to which those laws and court procedures is being put.

This is why, in my view, attempts to ‘name and shame’ the lawyers involved are misconceived.

(Though, for completeness, I know and deal with many of those who are involved.)

The lawyers that have so far been publicly named are but a sub-set of the lawyers competent and willing to take on such claims.

And – frankly – you do not need parliamentary privilege to ‘name and shame’ the lawyers: all you need to do is look at the case reports to see who they are, and at their own websites to see how they promote their practices.

I happen to be a media defence lawyer (among other things) – acting for journalists, campaigners, and politicians – and I chose not to act for claimants in these sort of cases, but that is entirely a personal choice.

In my experience of seeing dozens of threatening letters (of varying quality), almost all the threats are within the scope of law and practice as it stands.

And if a threatening letter did not come from one firm, I can imagine pretty much the same sort of letter coming from a dozen other firms.

The problem is with the law and practice, and so – if you sincerely want to solve the problem – that is where the solution will be.

Although therapeutic, ‘naming and shaming’ the lawyers involved is a cul-de-sac.

*

Another thing to note is that, in England, SLAPP is not just about costs – even if the amounts involved can be eye-watering.

Yes, London claimant lawyers are expensive – too expensive.

But: American lawyers are expensive too, sometimes even more expensive than English lawyers.

Media lawyers in other jurisdictions are also high-charging and highly paid.

Yet, it is in England that certain cases are brought – and threatened.

This is because the problem with SLAPP cases in London is not just the costs, but how those costs can be easily weaponised as part of of a legal threat.

London litigation is often not a game of thrones, but a game of costs.

The dynamics of many cases will come down to costs, and how costs consequences can be inflicted and deflected.

And how this happens comes down to the structure and practice of the relevant law.

*

But perhaps the biggest difficulty about discussing SLAPP in England is that the discussion can sometimes seem abstract.

SLAPP is a bad thing, and nice people are against bad things.

Let’s boo at SLAPP!

But the challenge is to make any SLAPP reform work practically – to make a difference in actual cases.

There are a number of ways law and practice can be misused, and so any reform needs to be set against actual cases to see if the reform would make any practical difference.

One thing I recall from the campaign which led to the Defamation Act 2013 is that the key case for mobilising support – the misconceived and illiberal claim brought by the British Chiropractic Association against science writer Simon Singh – turned out not to be directly relevant to the legislation that was then passed.

Little in that Act would stop another such case being brought again – and indeed it was the court’s own decision in that case, and not any legislation, that has stopped further similar claims.

There can be a practical disconnect between cases that attract public concerns and the reforms then promoted for dealing with such concerns.

That is why this blog is going to look over the next few days at a ‘data-set’ of SLAPP cases, to see what the actual problems are and to see what, if any, solutions can be put in place to stop similar cases being threatened and brought.

*

In the meantime, I would suggest anyone interested in SLAPP, and what practical reforms can be implemented to prevent such cases, look at the following:-

– the transcript of the oral evidence at the foreign affairs select committee on the use of strategic lawsuits against public participation (or watch it here);

– the excellent and comprehensive work by Susan Coughtrie and the Foreign Policy Centre on SLAPPS – including this policy paper;

– this House of Commons library briefing on SLAPP; and

– the UK government’s recent call for evidence on SLAPP.

**

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

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The Ministry of Justice needs leadership – but we are served scorecards

25th October 2021

Another weekend gone, and another proposed ministry of justice policy reported in the Sunday press.

The last one, if you recall, came from an interview given by the new justice secretary and Lord Chancellor (and deputy prime minister) Dominic Raab to the political editor of the Sunday Telegraph.

There he spoke of a ‘mechanism’ for ministers to ‘correct’ judgments which they happened to disagree with.

And not just any judgments, of course, but those where the courts had found that the state had interfered with fundamental rights and freedoms.

One would have thought that, if the effect of such judgments needed to be overturned, this would be a matter for parliament.

But no: ministers should be able to do this, it would seem, at a whim.

As this blog averred, the fact that such a thing was his ministerial priority when the criminal justice system is in crisis was enough to make any sensible person weep.

*

We now have another proposal, given to another political editor at another Sunday paper (though this was not an on-the-record interview but from a ‘source’, so it may have come from special advisors as opposed to from the justice secretary directly).

Scorecards.

This new proposal is as follows:

– Raab ‘wants people to be able to look up their local court online and check how quickly cases are dealt with’;

– the new national register ‘will give scores on the speed cases go through the system, and on the ‘quality’ of justice served, measured by the percentage of guilty pleas before cases come to court, as well as the number of cases rearranged because of problems with the prosecution’;

– the register will also score ‘victim engagement’, described as ‘how many crime victims give up and drop out of the process’

– the justice secretary has said ‘he wants ‘granular data’ on how courts are performing across the justice system’;

– the scorecards will be ‘introduced by the end of this year and data will be updated twice a year to monitor progress’; and

– it ‘is understood the Justice Secretary is keen on introducing scorecards on a regional level, so that in future members of the public would be able to look at the performance of local courts’.

*

One response to this proposal is to point out (which the ministry of justice ‘source’ either did not know or kept hidden) that much of this data is already published.

That statement of the should-be obvious fell to the main opposition spokesperson on justice:

*

And Lammy is right in another respect: the intention between this policy seems not for data to be published, but for court users to be misdirected.

The notion appears to be that court users will use the scorecards to put pressure on courts to perform better, and for courts to feel under pressure to show court users that they are performing better.

Court users will thereby be (mis-)directed into thinking that poor court performance is a matter for the individual courts.

But.

The problem about the court system is not micro, but macro.

The system is structurally under-resourced, and it needs leadership.

*

Here, let us turn our attention from the Sunday press to the National Audit Office:

The NAO published a major report just before the weekend.

The NAO did not propose scorecards.

Instead the NAO said: “if sustainable recovery in criminal courts is to be effective, the Ministry will need to improve its leadership of the system”.

Leadership.

Yes, the NAO used the ‘L’ word: Leadership.

But instead of leadership and solid policy, we get another weekend-special gimmick.

And not only just a gimmick – but one which appears to have the intention of misdirecting court users.

*

As this blog has previously averred: it does not have to be like this.

The justice secretary is a senior cabinet minister with the title ‘deputy prime minister’, as well as an experienced lawyer.

As such he is better placed than most recent justice secretaries to obtain better funding from the treasury, and to win the prize of serious reform.

But yet another weekend goes by where we are served trivial trinkets, instead of such a prize.

It is still enough to make any sensible person weep.

******

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Lord Chancellor, there is already a mechanism for the law to be changed: it is called Parliament

18th October 2021

Usually when something daft about policy is reported in the Sunday papers, you can sort-of work out the chain of miscommunication.

For example: minister to ‘special adviser’ to time-poor reporter on a background (and thereby to be re-worded) basis.

There is little wonder that the final report is often, well, inexact.

But.

In yesterday’s Telegraph, there was a report based on an on-the-record interview with Dominic Raab, the new lord chancellor and justice secretary.

And as an on-the-record interview, the usual disclaimers do not apply.

This would be what the minister actually said (or a close approximation).

News reporters can be guilty of many sins, but they rarely make up direct statements, and still less quotations.

And the lord chancellor and justice secretary is reported to have said something very striking indeed:

‘Asked about his plans to reform the Human Rights Act, Mr Raab revealed that he is devising a “mechanism” to allow the Government to introduce ad hoc legislation to “correct” court judgments that ministers believe are “incorrect”.’

The scare-quotes are lovely – but they do indicate these are the words that Raab actually used, as opposed to the rest which may be paraphrased.

Just read that statement again.

And think about it.

*

First: it is not for ministers to change the law on the basis of what they think are ‘correct’ or ‘incorrect’ court judgments.

This is about as basic a breach of the separation of powers as one can imagine.

Just as judges should not make policy decisions instead of ministers, ministers should not make judicial decisions instead of judges.

If a minister disagrees with a judgment then that is one thing – but it is not for the minister to gainsay the judge on the correctness of the law.

*

But that is not even the strangest thing about the statement.

Raab wants to devise ‘mechanism’ for ministers to make these ‘corrections’ – and not parliament.

But it should be parliament, operating under the doctrine of parliamentary supremacy, that should make or unmake any law in these circumstances – and by the means of primary legislation.

What Raab is proposing is a separate ‘mechanism’ where (a) laws can be made or unmade by ministerial decision and (b) that decision will be based on a minister subjectively thinking that a judicial determination is ‘incorrect’.

And note: this is not just for any old laws.

Oh no.

This is for those laws where a court – usually a senior and experienced judge or panel of judges – has found that there has been a breach of fundamental rights.

If any legal ‘corrections’ should not be done in a fast-track way, without parliamentary involvement and on the basis of mere ministerial opinion, then it should not be where a court has found there to be breaches of fundamental rights.

*

In essence, what the lord chancellor and justice secretary is actually proposing is that a minister can by executive fiat reverse a judgment on the basis of a subjective opinion about ‘correctness’ when a court has found there to be a breach of a fundamental right.

Think about that.

And who is proposing this?

The very cabinet minister who has a constitutional role, recognised in statute, of protecting the rule of law.

Maybe the minister was misquoted or misunderstood, but there has not been any correction or clarification of the Sunday press report.

So presumably Raab is therefore happy with how he has been reported.

But.

There is already a mechanism where the other elements of the state can respond to such (perceived) judicial over-reaches.

It is called parliament.

And it is for parliament to decide how to respond – and to do by primary legislation.

And not ministers.

***

Or in the words of the the government’s former chief lawyer:

 

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When the justice system is in crisis, Dominic Raab should not be using finite ministerial time and scarce departmental resources to attack the Human Rights Act

17th October 2021

Sunday again, and another Sunday press piece about how the new justice secretary and lord chancellor Dominic Raab will do something-or-other against the Human Rights Act.

The criminal justice system in England and Wales is in crisis.

The ‘crisis’ word is not used easily: but we do have a serious situation the outcome of which is not certain.

Trials are now not taking place for years after the alleged offences; there are not enough courts or enough lawyers for hearings to take place; victims, witnesses and defendants (some of whom will, of course, be innocent) have the stress of delays and uncertainty as an everyday factor in their lives.

One would think sorting out this predicament would be the priority – perhaps the absolute priority – for the incoming justice secretary and lord chancellor.

On the face of it he is in the strong position.

He is deputy prime minister, and so he has a strong position in cabinet and is well-placed to take on the treasury for more funding.

He is a qualified lawyer with actual experience of practice, and so has the potential insight of knowing how law works in practice rather than just as a thing in the news.

He could – as this blog averred recently – become one of the great modern lord chancellors.

*

The ministry of justice is not a big department in Whitehall terms, and it is has little purchase on the parliamentary timetable.

A bill to ‘overhaul’ the Human Rights Act will be instead of ministry of justice legislation on more practical (and pressing) concerns.

Civil servants and ministers working on Human Rights Act ‘overhaul’ are necessarily doing that instead of something more useful.

Resources being used for Human Rights Act ‘overhaul’ are also necessarily diverted from something more useful.

And not since the days of Mackay, Irvine, Falconer and Clarke have we had a lord chancellor in such a strong political position within cabinet and with the prime minister.

Think of the good that this deputy prime minister could do for the justice system as a whole.

Think of it.

And now remember that this lord chancellor’s priority is contriving a fight with ‘Europe’ in respect of a symbolic assault on the Human Rights Act.

The sheer triviality of these relative priorities is enough to make sensible people weep.

*****

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Suggested donation of £1 upwards for each useful post, or of £5 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

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