Category: Policy and Policy-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Raab is a long-time critic of the legislation, and as a junior justice minister previously sought to get the Act repealed.

Second: there is a review soon to report that may be the occasion (or pretext) of the Act being repealed.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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What ‘pro bono’ means, what ‘pro bono’ does not mean, and what ‘pro bono’ will not solve

29th September 2021

One of the joys of being a lawyer is that you will often be asked to do stuff for free.

The request may be from a friend or relative, or from friends of friends, or from acquaintances, or from people who only know that you are a lawyer.

Often these requests will be framed as asking you to do it ‘pro bono’ – which many seem to think is a synonym for ‘for free’.

And they will ask you to do stuff for free when they would never dream of asking, say, a plumber for something for nothing.

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The phrase ‘pro bono’ comes from the Latin phrase ‘pro bono publico’ – which means not for free but for the public good.

And so when a lawyer – or anyone else – does a thing pro bono publico they would (or should) be doing it for the benefit of the public.

So when a person asks you to work ‘pro bono’ for the benefit of, say, their commercial company or for the value of their house, it may be that they want you to work for free when they could pay you as well as they would pay a plumber, but it is not easy to square that private benefit with ‘pro bono publico’.

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What is, of course, ‘pro bono publico’ is the provision of legal services to those who cannot otherwise afford them.

That is because there is a public good in those who would not have access to legal advice being properly advised in dealing with the law – especially in potentially life-changing situations involving the criminal law, immigration, housing or employment.

But this is because such people getting this legal assistance is the public good – not that it is being given for free.

And so a properly resourced system of legal aid is also for the good of the public: ‘pro bono publico’.

Many lawyers choose to do work (sometimes a lot of work) for free – and those who do so are quiet saviours who often make real differences to people facing life-changing situations.

But it is not a sustainable way to provide legal services to the most vulnerable in society.

And any sensible reform of legal services should not rely on lawyers providing professional services for free, and especially not outside their areas of expertise and experience.

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Yesterday the Labour politician and justice spokesperson David Lammy said the following in a conference speech:

‘City law firms are making billions in profit while low-paid workers see their tax bill rise and wages fall.

‘Labour recognises the importance of the private sector working in partnership with the public sector.

‘That’s why today we are announcing that a Labour government would support the introduction of a new national pro bono service.

‘With binding pro bono targets to support those who can’t afford legal advice and are ineligible for legal aid.’

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Although like others, I have a lot of time for Lammy, I do not think this proposal is a sound one.

The city firms making these billions in profit should either be taxed more or pay a compulsory legal services levy so as to ensure that there are paying towards a properly resourced legal advice service.

And instead of having (no doubt well-meaning) City solicitors giving (say) social security law advice (or on anything else outside their usual practice areas) there could be experienced practitioners able to give speedy practical advice to those in need.

(I spent years as a trainee and junior City solicitor helping at free legal advice centres, and with the best will no City lawyer can match an experienced lawyer specialising in the relevant areas of law.)

This policy proposal is misconceived.

City law firms – and also commercial and corporate barristers – can and should be helping support areas of legal practice where there is less funding available.

But getting those lawyers to advise on things for free about which they have no particular knowledge or experience is not the best way of helping those who need help.

There should be instead legal advice centres in every community with the resources in place for lawyers who actually know what they are advising on to help those who are unable to get legal advice elsewhere.

That would not be for free – for they would need government funding – but it would be for the public good.

That is: ‘pro bono publico’.

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‘Regardless of Brexit’ – why bad policy-making is a more serious problem than Brexit

28th September 2021

Over at the Financial Times today there is an outstanding piece of journalism (again) by Sarah O’Connor.

In this article she explains why temporary/emergency migration schemes can be misconceived:

‘But it’s not always that simple. It is common for migrant workers to borrow money to pay for visas, transport and recruitment fees, which makes them vulnerable to exploitation. In addition, unlike under the EU’s free movement of labour, they are usually tied to a specific employer or recruiter which makes it hard for them to leave if they are treated poorly. As a result, the schemes can exacerbate poor pay and conditions in some sectors and calcify employers’ dependence on migrants.

‘One study by the US Economic Policy Institute concluded: “We cannot point to one historical example in which a temporary labour shortage has been remedied with a temporary labour migration programme, and then employers returned to hiring local workers.”

‘A favourite aphorism of migration experts is that there is nothing so permanent as a temporary migration programme.”

The article should be read in full here.

And then, setting out other examples, she avers:

‘None of this was inevitable. If the government had really wanted to improve the quality of jobs in the food and transport sectors, it could have done so regardless of Brexit.’

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And on Twitter, another insightful commentator Dr Anna Jerzewska set out the following thread:

And today Jerzewska correctly comments on O’Connor’s piece:

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There are purists who will say that any Brexit would be bad, for there was no way the process of the United Kingdom leaving the European Union could have gone well.

To an extent, the purists are correct: there was no way such a fundamental shift to settled commercial, policy and legal relations could go uniformly well.

But.

There is no reason why Brexit had to be done this botched way.

And this is not just the captaincy of hindsight.

(For example, in 2017 I set out some practical suggestions for how Brexit could be done better.)

Yet for political reasons, Brexit was done in a rush and with no planning or real thought (that is, with no real policy) as to what post-Brexit arrangements should be put in place.

And it is this policy failure – literally, the failure to have a policy – which is, alongside Brexit and Covid, the cause of so many of the current discontents and disruptions.

What Brexit is revealing and exposing are the policy failures of successive government, and especially recent governments.

Like discovered checks in chess, things have moved that show deep vulnerabilities that had hitherto been hidden.

And because the post-Brexit government is not serious about policy, and has no grasp of dealing with complex situations, we get expediency and bluster instead.

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Perhaps – like a policy equivalent to a market adjustment – a new group of politicians will now emerge to supply the policy seriousness that is now demanded.

This would be like how in many wars, new worldly commanders come to the fore to replace the clumsy peacetime generals who make the initial mistakes.

Perhaps.

But unless we soon have a generation of politicians that have the measure of the practical problems facing the United Kingdom then there can only be more chaos and crisis-management, instead of planning, thought and policy.

Brace brace.

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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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The government proposes a Christmas gift for emergency visa workers: a deportation order on or after 25 December 2021

26th September 2021

Ebeneezer Blackadder:
In fact, there is something in your stocking, Baldrick, something I made for you.

Baldrick:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a fist. It’s for hitting people with. See?

– Blackadder’s Christmas Carol (1988)

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The government’s proposal was daft to begin with.

An extraordinary proposal, even for this government.

And just in case you would not believe me, here is the BBC tweet announcing it – and the BBC’s name is good upon ’Change, for anything it choses to put its name to.

The necessary implication of the government’s proposal is that by automatic operation of law these lorry drivers who will deliver our Christmas goods and these poultry workers who will provide the Christmas turkeys will become illegal aliens at the stroke of midnight on Christmas Eve.

What a Christmas present for those who choose to come over here to provide services, goods and food for those of us in Great Britain.

The following tweet on this is (I think) intended as satire:

But as Zoe Gardner observes, it it not far off the actual legal position:

She is right: that would be the legal position on Christmas Day.

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And as this blog averred yesterday, there is no reason to believe this quick fix will work in any case.

Let us remember what happened last year.

There is thereby no particular reason to think there will be a rush of workers wanting to help Great Britain out at this time of need.

And so the proposal may become an(other) example of the post-Brexit government discovering that the many problems created by Brexit are not capable of quick easy solutions.

Inviting such workers on terms where – once they have delivered Christmas goods in their lorries and helped provide the turkeys for Christmas dinners – they will literally become illegal aliens at the strike of midnight – is a thing not even Charles Dickens would have imagined.

To adapt Blackadder:

Ebeneezer Blackadder:
Thank you for helping save the British Christmas, there is something in your stocking, something I made for you.

EU migrant worker:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a deportation order. It’s for deporting people with. See?

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“Can any of you drive a lorry?”

25th September 2021

Some magazine covers are for the ages.

This The New European cover captures the current predicament of the current United Kingdom in respect of migration.

On one hand, the government is strident in its attempt to exclude migration.

Brexit-supporting politicians boasted about ending ‘freedom of movement’ as an end in and of itself.

(It always seemed odd to hear those boasts about ending freedoms – as if ending a freedom was something to be proud about.)

The current home secretary loudly wants, as a matter of policy, to deter cross-channel migration – a policy aimed at and appreciated by those who clap and cheer at such things.

And on the other hand, we not only have damaging self-inflicted labour shortages – we also now have a significant reversal of policy.

The United Kingdom government has realised – in perhaps the first of what will be a telling sequence of realisations about Brexit in reality – that ending freedom of movement causes serious problems as well as prompting claps and cheers.

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One of the causes of this situation is that that those who wanted to suddenly and drastically end migration had no grasp of what would happen in practical, messy reality.

Brexit was (and remains) a political attempt at treating a complex problem as a simple problem.

And so we keep bouncing between the fantastic realm of slogans and the mundane world of reality.

Here the government’s reversal of some visas (the applications for which will be tied up in red tape) may not even work as a policy change.

If so, then such an abrupt reversal may not be enough to solve the problem this government has created for itself – and for us.

And if there is to be a sequence of realisations, where Brexit slogans – one can hardly call it an ideology – do not match Brexit reality, then the government will find that quick-fix reversals will not work either.

It is one thing to realise that reality does not match up with your slogans, but it is another to realise that no policy reversal will match up to the policy mistake you have made.

And so we may end up with a bunch of stressed, washed-out, desperate and directionless politicians – facing the question: can any of you drive a policy?

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“I’ve always thought that a free trade deal with the U.S. would be difficult” – and what this Prime Minister’s falsehood tells us about law and policy

23rd September 2021

Once upon a time a Brummie solicitor and pundit averred that a post-Brexit trade deal with the United States was ‘in the bag’.

That Brummie solicitor and pundit was not me – though I did have fun with this boast in a Financial Times piece.

Jones was not the only figure to assume that a post-Brexit trade deal with the United States would be easy.

Almost all Brexiters who had an opinion on the matter assumed that such a trade deal would be a given.

And one such Brexiter was the now prime minister Boris Johnson.

But now he denies he ever said it.

Here, this short video should be watched in full.

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Shameless stuff.

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There are at least two issues here.

The first was the readiness of Brexiters to assume international free trade deals were easy – that they would naturally follow from Brexit with the United Kingdom having a fully independent trade policy.

This sentiment may be derived from cod-historical notions about Victorian Britain – where it is imagined that the likes of Richard Cobden would pop across the channel to negotiate a free trade deal and still be home for tea.

In the mundane world of 2021 – as opposed to the giddy biscuit-tin world of nostalgic reenactments – new trade deals are rarely quick or easy, and often may not be worth having at all.

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The second is that the prime minister knows he can say things that contradict what he said before and that few, if anyone, will care.

And this is despite the internet making it easier to expose such lies and other discrepancies.

Other than for the sake of it as a public good, there is no real point in setting out the falsehoods.

This is one thing that George Orwell perhaps did not correctly anticipate in Nineteen Eighty-four – there would be no need to employ the likes of Winston Smith to go back and change the historical record, as it would make no difference as to whether people believed new false claims.

The future instead turned out to be President Trump and others waving away such inconvenient truths as ‘fake news’.

For as this blog has said many times: exposing lies is not enough when people do not mind the lies.

So we are now in a bubble of faux-historical sentimentality and hyper-partisanship, where the truth of the historical record makes no difference.

You may think the bubble cannot carry on, but yet it does.

It is the paradox of our age: it has never been easier to expose a falsehood, yet the falsehoods continue to have purchase.

And from this many of our current problems in law and policy follow.

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Are President Biden’s comments on ‘the Irish Accords’ a life line for the Human Rights Act?

22nd September 2021

Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.

From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.

The question and answer are here and you should watch and listen for yourself:

You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.

Is she right?

And what is the connection between that exchange and the Human Rights Act 1998?

Here we need to see what the Good Friday/Belfast Agreement says.

In respect of the European Convention on Human Rights (ECHR), the agreement says the following:

‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’

and

‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.

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These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.

The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.

But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.

This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.

Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.

But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.

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So does this mean the Human Rights Act 1998 is safe?

I am not so sure.

I averred on this blog when Raab was appointed (and I am sorry to quote myself):

‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’

Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.

A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.

A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.

It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.

Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.

But we do not have a wise government – we have a silly government.

And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.

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But the politics of symbolism does not just have one direction.

Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.

So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.

But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.

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“I’d much rather get a deal that really works for the UK than get a quick deal”

21st September 2021

Just a short post today, to note the irony – or lack of irony – of this statement by the prime minister:

“I’d much rather get a deal that really works for the UK than get a quick deal”

There is, of course, nothing to fault in this utterance – on its own terms.

It is a statement so solidly sensible that, one would think, it is a Good Thing that a prime minister has said it.

But.

This is also a prime minister who rushed through a Brexit deal that he now wants to renege on.

This is also a prime minister who heads a government that seeks to enter quick trade deals by the expedient of dropping demands and agreeing to whatever is offered.

So: the prime minister may have said “I’d much rather get a deal that really works for the UK than get a quick deal” but he is not being sincere.

The context undermines the text.

What he says here (as elsewhere) does not correspond with his or his government’s policy.

His words are instead a rhetorical trick – to explain away failure by a claim to high-mindedness.

All that the prime minister means by “I’d much rather get a deal that really works for the UK than get a quick deal” is that he cannot get a quick deal – or any deal.

Not even for soured grapes.

It sounds statesmanlike and commendable, but is just another excuse from the excuse drawer.

Imagine having a prime minister who expounded such a principle – and actually meant it – and that the principle expounded in turn corresponded to policy?

That would be quite a thing, wouldn’t it?

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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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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

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