Category: Policy and Policy-Making

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)

*

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.

*

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.

*

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.

*

Shameless stuff.

*

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.

*

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’.

*

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.

*

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.

*

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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The significance of the appointment of Dominic Raab as Lord Chancellor and Secretary of State for Justice

16th September 2021

Yesterday one politician replaced another as lord chancellor and secretary of state for justice – one of a number of ministerial changes in a reshuffle.

So what?

What, if anything, does this change signify?

*

The outgoing lord chancellor was Robert Buckland, a conservative member of parliament, former solicitor general, and experienced criminal barrister and former ‘recorder’ (a part-time judge) in the crown court.

He had been in office for just over two years – and there are good, bad and ugly aspects to his term.

The good was that, in large part, the justice system was not dragged into the government’s infantile ‘culture wars’.

A fundamental political assault on judicial review fizzled down to almost nothing (see here).

To the extent to which this was down to his political interventions and tactics, all sensible people should be grateful.

The bad was that the wider justice system is in a bad state, with some parts – especially criminal justice – almost in chaos, with delays of years for basic matters.

This predicament was admitted by Buckland in his resignation letter:

You will see he expressly says that there have been ‘years of underfunding’ – and here it should be remembered that the conservatives have been in office for eleven years.

The ugly is his failure to check the explicit attempt by the government to break the law with the internal markets bill.

Others resigned: the advocate general Lord Keen resigned, as did the treasury solicitor Jonathan Jones.

It was an issue on which a lord chancellor of any integrity should have resigned too.

This is because the lord chancellor has an obligation, reflected in statute, to uphold the rule of law.

The moment the bill was published, the lord chancellor should have resigned.

There was no good reason not to do so.

But Buckland chose to stay on, in breach of his constitutional duty, and – in effect – gave cover to a government explicitly committed to breaking the law.

And his reward for this misplaced political loyalty?

He was casually sacked just to create a vacancy for a minister who had failed in another department.

Buckland will now spend the rest of his political and legal career justifying why he did not resign on the spot.

*

Buckland’s replacement is Dominic Raab, another conservative member of parliament.

Raab has already served as a minister at the ministry of justice and has a legal background.

Yesterday, political sources told the political editor of the BBC that Raab was ‘a senior lawyer’, which the political editor then repeated as a fact without checking.

Raab is, in no meaningful sense, ‘a senior lawyer’.

This is not to make a political or partisan point, just a statement of fact.

He left the legal profession after a handful of years to go into politics.

There is certainly nothing wrong with that – and ceasing to be a practising solicitor can be a wise thing to do.

And Raab does have good legal credentials – prizes, a higher degree, and experience at a well-regarded city law firm and at the foreign office.

But he was only ever a junior lawyer.

*

A case can be made for Raab’s appointment being a good thing.

He is a qualified lawyer – and many have complained when the lord chancellor has not been a qualified lawyer – with a good academic and professional background.

He is also deputy prime minister – which means that he will perhaps be in a stronger position in negotiations with the treasury so as to correct the historic underfunding described by his predecessor.

And he has a sincere (if haphazard) belief in rights, as shown by his 2010 book and his emphasis as foreign secretary on human rights for those under other regimes.

Sudan:

Syria:

Sri Lanka:

Belarus:

China:

And Russia:

There are many others.

Raab has tweeted about human rights dozens of times as foreign secretary.

And only, it seems, three times about Brexit – even though he was a strong Brexit campaigner and former Brexit secretary.

*

So what can possibly be wrong about this appointment?

Legal background, qualified lawyer, influential within cabinet, genuine interest in human rights (at least for foreigners).

Why was a legal journalist able to (correctly) tweet this?

*

Part of the answer is that – notwithstanding his interest in human rights abroad – Raab has a fixation with repealing the human rights act in the United Kingdom.

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.

Raab may also be tempted to re-open the judicial review question, disregarding Buckland’s more conciliatory approach.

*

The real opposition to Raab’s, however, is more political than legal – his brash and confrontational political approach tied to a sense that there is little substance.

And so on.

*

But.

Every new lord chancellor and justice secretary should be given a fair chance.

For example Michael Gove was a surprisingly good lord chancellor and justice secretary – and not just because he was not Chris Grayling.

Perhaps Raab will also turn out to be a surprisingly good lord chancellor and justice secretary.

Perhaps.

*

But.

The real significance of the appointment is not about personalities.

It is about the office of lord chancellor.

This office used to be occupied usually by a senior lawyer-politician, with no further political ambitions.

But since the creation of the ministry of justice under Tony Blair and Charles Falconer – which combined the old lord chancellor’s department with parts of the home office – the department has generally been under politicians on the rise.

And now it is being given to politicians on their fall.

Here, a consolation prize for being sacked as foreign secretary.

Just another spending department with just another politician in charge.

Yet: the lord chancellorship is special – or should be.

The lord chancellor has a duty to protect the rule of law in government and the independence of the judiciary.

And here there will be a tension with Raab’s appointment.

For as deputy prime minister, Raab will be answerable in parliament for the government as a whole (in the prime minister’s absence).

He will also, if he wishes, have a dominant position on any cabinet committees he choses to attend.

He will, in essence, be part of the thing that that lord chancellor is there, in part, to protect against.

No other deputy prime minister has also been lord chancellor.

This tension means potential problems ahead.

*

After the creation of the ministry of justice it was perhaps only a matter of time before it became just another political department.

And to this extent, the appointment of a politician such as Raab to the office in these circumstances was also just a matter of time.

But this does not take away from some of the tensions – perhaps contradictions – set out above.

The appointment is certainly good for law and policy commentators.

There will be a lot to commentate on.

It may not turn out so well for law and policy.

**

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9/11 x 20

11th September 2021

The general lot of law and policy in the last twenty years has not been a happy one.

Torture used and regularised; an invasion and occupation that not only had no legal basis but also greatly discredited politics itself; the growth of the surveillance state; and the general illiberal turn to nationalistic populist authoritarianism.

All this followed the terrorist attack twenty years ago today.

That these things followed that attack cannot be disputed, as a matter of chronology.

*

But what about causation?

Did 9/11 cause the illiberal turn?

Anyone with an interest in the subject will have a view.

But I am afraid I think the illiberal turn would have happened anyway.

There was never any rational connection between 9/11 and the Iraq invasion – and so there would have just been another pretext instead of the ‘war on terror’.

Those with power will torture if they can get away with it – and how the United Kingdom so readily participated in torture would not surprise anyone with knowledge of what the British did in Kenya and Northern Ireland in the post-war period alone.

Those with power did not need a reason to use and regularise torture: they just need an excuse.

And the developments in computer and communications technology since 2001 would have meant the state seeking more surveillance powers, regardless of the attack on the twin towers.

So in essence: it is plausible that all the bad things in law and policy that have happened since 9/11 would have happened anyway.

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The sordid return of ‘the will of the people’

10th September 2021

This government is abandoning manifesto commitment after manifesto commitment.

This is notwithstanding that, in a representative parliamentary democracy, it is only by manifestos that we have anything that approximates to mandates for a majority party returned in a general election.

Such manifesto commitments are not, it seems, binding commitments on the government.

But.

Elsewhere in government, the ‘will of the people’ is being invoked – and perhaps in the mist sordid and disgusting way imaginable to any any sensible and humane person:

Because of this policy, fellow human beings will die.

There will be those who will be dead tomorrow who otherwise would not be dead but for this policy.

This policy is not in any manifesto.

The invocation of ‘it is what people want’ is nothing more compelling than speculation.

But it is enough.

Because ‘it is what people want’ then other people will die.

This is a ‘pick and choose’ approach to representative democracy.

Things that had been explicit in a manifesto on which people people had actually voted are casually discarded.

And by reason of the slogan ‘it is what people want’ lives of fellow human beings will be just as casually discarded.

The common feature is executive arrogance.

Ministers believe they can do as they wish to anyone, regardless of actual mandates.

This does not mean well for our democracy.

Brace brace.

**

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

9th September 2021

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

*

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

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

There will be no meaningful reform to social care.

There has been no meaningful scrutiny of any proposals.

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

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

It has simply been a political smash and run.

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

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

*

What makes this seem familiar?

Well.

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

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

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

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

Many are not clapping and cheering now.

**

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