Category: Policy and Policy-Making

When this government does not like a rule which binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule

3rd November 2021

There is an extraordinary situation today in the house of commons.

Yes, yet another extraordinary situation – and although such situations are becoming commonplace, they should never be regarded as normal.

The government is instructing its backbenchers to vote down a suspension of a member of parliament who seriously breached lobbying rules.

The government is also seeking to re-write those rules.

As the deputy leader of the opposition rightly said at prime minister’s questions: “when they break the rules they just remake the rules”.

And this, of course, is part of a trend.

Here is one colleague at the Financial Times:

And another:

The overall trend is that if this government does not like a rule which (supposedly) binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule.

It is not so much ‘one rule for them, and another rule for us‘ but no rules for them.

And this at a time where the authoritarians in government seek to impose more and more rules on the public – especially those who its political and media supporters do not like.

At base this is not even about ideology.

There is nothing here so grand that can be articulated as any broad principle or general theory.

This is just akin to gangsterism.

Those under the protection of the centre – and those at the centre – should face no constraints on their autonomy.

While those on the outside of this protection, are under what ever obligations that centre believe should be imposed.

The problem for this being a driver of government in a democratic society is twofold.

First: not all governments exist forever, and there will be one point – eventually – where those on the inside will be on the outside.

And second: governments in a democracy ultimately require legitimacy – and doing ‘what works’ cynically can eventually have a counter reaction when the government needs broader support than whatever it can get away with.

So these antics may be clever, but they are not wise.

The public may not care now – and it may not ‘cut through’ – but sensible heads should steer the government away from this illiberal and misconceived approach.

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Budget special: the Fiscal State vs the Legal State

28th October 2021

Over at the London Review of Books there is a fascinating and informative review by Ferdinand Mount.

The review is of a book by Julian Hoppit about the history of tax and spending in the United Kingdom (which I have not yet read), but there are some thought-provoking points in Mount’s review.

The points in the review are, in effect, useful counter-balances to the usual critique of the United Kingdom constitution on blogs like this one and from other liberal constitutionalists.

*

This usual critique is that there is an inherent illiberal problem with the constitution of the United Kingdom: that the doctrine of parliamentary supremacy creates a real scope for political dictatorship – even if this possibility has not (yet) been fully realised.

There is nothing to stop it, for there is nothing that can gainsay the legislative supremacy of parliament – and so an executive with an ascendancy in parliament faces no ultimate checks and balances.

*

It was not always like this, of course.

In the early 1600s, the great lawyer Edward Coke averred that there were limits to what could be done by acts of parliament:

“for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void”.

But the political facts of the civil wars of the mid-1600s and of the deposition of a reigning monarch in 1688 meant that parliament became, in practice, legislatively omnipotent.

And this political reality was fixed into rigid ideological doctrine in the late 1800s by A. V. Dicey, whose articulation of the sovereignty of the crown-in-parliament has been orthodoxy ever since.

*

As this doctrine of parliamentary supremacy took hold, there were voices of alarm.

In 1929, the sitting Lord Chief Justice – Hewart – published The New Despotism warning of the implication of the power of a government that controlled the legislature, for it would tend “to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme”.

In 1976, the Tory (former and future) Lord Chancellor Lord Hailsham warned of an “elective dictatorship”.

Both Hewart and Hailsham were experienced politicians as well as senior judges, and they could see how flimsy were the ultimate checks and balances on the executive.

All we had to rely on is what the constitutional historian Peter Hennessy has described as ‘the good chaps theory of government’.

This described how self-restraint was the primary reason why the executive did not carried away with its unchecked constitutional power.

And in an age of Boris Johnson and Dominic Cummings (and of Donald Trump and Steve Bannon), this is not a comforting prospect.

*

So how did we end up like this?

Why has the United Kingdom state almost sleepwalked into creating the conditions where raw executive power is effectively unchecked?

Mount’s review provides an interesting explanation.

The explanation is that this was not any conscious political intention, but the implication and by-product of the fiscal state.

Here Mount’s review starts with this wonderful anecdote:

“‘You were so generous, you British,’ Hans-Dietrich Genscher, West Germany’s perpetual foreign minister in the 1980s, once remarked: ‘You gave us a decentralised federal structure and a proportional system of election so that never again could we concentrate power at the centre, but you took neither of these for yourselves.’ Canadians and Australians could say much the same […]”

Mount then explains why we did not take the liberal constitutionalist course we imposed on others:

“The answer provided by one strong, perhaps dominant, tradition in English historiography is that monarchy, single rule, is a remarkably effective system, the secret of England’s survival and, for many centuries, the driving force behind the expansion of its power. Hence monarchy’s enduring popularity. […]

“Kings of England commanded a range of power and control over all subjects which outdistanced supposedly greater monarchs on the Continent.’

“This power consisted, above all, in the capacity to collect taxes. There were popular eruptions and, of course, exceptions (smuggling was one nagging drain on revenue), but between the poll tax riots of 1381 and the poll tax riots of 1990, what’s remarkable is the docility, by and large, with which the English paid their taxes, even when they reached monstrous levels to finance the Napoleonic Wars and the world wars of the 20th century.

“[…] after each convulsion – the Civil War, the Glorious Revolution, the Great Reform Bill, universal suffrage – the essential supremacy of the queen-in-Parliament (‘absolute omnipotence’, in Dicey’s phrase) re-emerged virtually unchanged.

“In this version of history, Parliament itself is reduced to a serviceable appendage for securing popular assent.”

(By the way, Mount’s review is more nuanced than the quotations above may indicate, so don’t take those quotations as the entirety of his stated position.)

*

In other words: what makes no sense – and is akin to madness – from a liberal constitutionalist perspective, makes perfect sense from a fiscal perspective.

The executive’s abilities to impose taxation and to obtain revenue, and to have general consent in doing both, benefits greatly from the crown-in-parliament.

Translating finance bills in to acts of parliament is the thing.

And because of this, few front-rank politicians of any party would want to question, still less disturb this happy political situation – other than legal-political observers like Hewart and Hailsham.

Politicians and parties simply want the keys to this efficient fiscal-legal-political state.

And indeed a great deal of the United Kingdom constitution – and its history – is best understood from a fiscal perspective – including the respective powers of the two houses of parliament following the 1909-11 constitutional crisis.

*

But.

What happens when the priorities of a government are not limited to the mundane business of tax-and-spend, but expand instead to wanting to use the executive in hyper-partisan exercises to stoke endless culture wars, and so on.

For not only do new ministers get they keys to the efficient fiscal-legal-political state, they also get the keys to unchecked executive power more generally.

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What is useful about being informed (or reminded) as to why the constitution of the United Kingdom came to be in its current arrangement is that at least it explains a thing which is a horror from a liberal constitutionalist perspective.

And it forces the question: can the constitution of the United Kingdom be reformed so as to become less of this liberal constitutionalist horror without losing the fiscal-legal-political efficiency that politicians (and – presumably – their voters) find so attractive and will not plausibly relinquish?

This is a difficult question.

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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.

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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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The Executive Power Project continues – the interesting speech of the Attorney General

20th October 2021

There is a thing called the Judicial Power Project, which – as its name does not suggest – is not really about judicial power.

The project is about promoting executive power and is generally against any judicial check or balance of that executive power.

Sometimes it may affect to be defending ‘parliament’ or ‘the people’ against the judges – but it will complain of cases (such as the Miller cases) where the courts have been resolute in upholding the democratically elected parliament against the executive.

This executive power project had been fairly quiet in recent times – but it is back.

The Attorney General has made a speech – and it is not a flimsy speech – setting out a general critique of judicial power which could have been written by the executive power project themselves.

In one way, we should be grateful – for it is useful to have the arguments and contentions (and the case references on which those arguments and contentions rest) all in one accessible place.

And it is also good that it was done in a speech before a serious legal audience – and thereby ‘on the record’ – as opposed to briefed to the media or in an interview with a political reporter.

One does not have to be a great fan of the current Attorney General to admit that this was the right way to set out this general critique.

But.

The speech is not compelling – and this blog will in a few days set out a reasoned response to the speech.

It is, however, my tribute to the speech that it cannot be dismissed within a few minutes of reading it by a scathing blogpost.

The scathing post on this blog will have to take a bit longer.

In the meantime: here is a YouTube video Professor Mark Elliot, one of the leading experts in this area:

And this is his thread:

At least this speech means there is now the possibility of a proper political and policy discussion – or even a debate – about this general issue.

I will put up my post on the speech in a day or so.

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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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Last year judges were too activist, and now they are being reined in – but neither claim is correct

16th October 2021

Those who write about the politics of the judiciary in the United Kingdom have their very own two-for-one offer.

First, you write about whether the judges are too activist and need to be reined in.

Then, after a while, you write about how the judges are no longer too activist and have been reined in.

And loop.

Over at Prospect – the only United Kingdom current affairs magazine to take law seriously (and where I, ahem, currently have a column), there was this cover story back in March 2020.

The sub-headline asked us solemnly: have the judges overplayed their hand?

It was a great, well-researched and detailed article, and it rewards careful reading.

But.

I thought it was misconceived, and I said so in the April 2020 issue.

My contention was that there were (and are) two different things.

The first is the political-media narrative of ‘judicial activism’ – and this has a life of its own.

And then there is the mundane plodding everyday reality of the work of the administrative court and of public lawyers, where ‘ambitious’ points invariably fail and conservative judges certainly do not want to make policy decisions or trespass outside the judicial arena.

The two things have little in common.

Thrilling narrative v boring reality.

(Administrative law and public law are names for the special area of law which provides the legal obligations and powers of public bodies and the rights of those whose seek to challenge those public bodies, usually by ‘judicial review’.)

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Anyway,  Prospect now has a piece – lo-and-behold – explaining how the judges have been reined in:

“The government wanted to rein in the Supreme Court. Now it may not need to.”

Well, what a surprise.

This is not to say the piece is not great, well-researched and detailed – it is – and again it rewards careful reading.

But also – as before – it is in my view misconceived.

The mundane plodding everyday reality of the work of the administrative court is just as before.

As usual ‘ambitious’ points invariably fail and conservative judges still do not want to make policy decisions or trespass outside the judicial arena.

What has actually happened is that the political-media narrative has swung around.

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‘Judicial activism’ has long been a political-media rather than a legal event.

The two Miller cases are exceptional – dealing with distinctive (and literally unprecedented) constitutional predicaments and were (and are) not representative of the general casework of the courts.

The last real bout of judicial activism in administrative law ended in the early 1990s, with cases like M v Home Office (a decision far more significant in general public law terms than either Miller case).

And even that 1980s/1990s bout was nothing compared to the big shifts in 1960s, where cases such as Ridge v Baldwin, Padfield, and Anisminic created public law as we now know it.

Other than the extraordinary but unique Miller cases, public law has generally been dull for the last few years.

(I know this because I became a lawyer at the turn of the century so as to do public law, and it really has not been an activist area of law.)

The fact that the recent government-supported review into reforming judicial review was such a damp squib was because it was based on what the courts were actually doing – and not on what the political-media narrative said the courts were doing.

Almost all the leading cases are still from the last century.

The main principles are still those asserted in the 1960s and then articulated in the 1984 GCHQ case: irrationality, unreasonableness, and procedural irregularity.

However: wait another year or so and there will again be earnest concern about ‘judicial activism’.

Then some time after that the judges will be ‘reined in’.

And so on – until it is perhaps finally realised that the media-political narrative of ‘activist judges’ has a life of its own, and is not closely connected with the general public law work of the courts.

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A hard look at the latest Brexit speech of Lord Frost

13th October 2021

Yesterday the Brexit minister David Frost gave a speech – and it is a speech that is worth considering carefully.

One reason to consider it carefully is that – unlike many ministerial speeches (and articles) that are produced by advisors and other functionaries – it is plain that this speech is the product of the minister’s mind.

As such, the speech has more historical and probative value that the usual erratic yet dry sequences of banalities, evasions and misdirections that constitute most ministerial communications.

We have an actual insight into one key minister is thinking (or not thinking) at this key moment, and this is rare, and we should appreciate it.

And as he is the minister who negotiated the two Brexit agreements – the withdrawal agreement and the trade and cooperation agreement – an insight into his thought (and lack of thought) is especially important at this time.

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The explicit inspiration for the title of yesterday’s speech is a pamphlet by the eighteenth-century Whig writer and politician Edmund Burke.

And yesterday’s speech is, in turn, expressly a sequel to Frost’s Brexit speech in February 2020, which was also named after a publication by Burke.

In that February 2020 speech, English-born Frost described Burke as ‘one of my country’s great political philosophers’.

Burke was Irish.

And Burke died in 1797, before the Act of Union between Great Britain and Ireland.

This is just not a debating point: the slip is indicative of the shoddy combination of showiness and shallowness – about Ireland and other matters – in both of Frost’s speeches.

The Burke cited is the Burke of the quotation dictionaries, and of the beginnings and conclusions of C-grade A-level history essays, and not the Burke of history.

The Burke of history would probably have impeached this illiberal government in an instant.

*

The two Frost speeches, looked at together, reveal tensions.

For example, the February 2020 speech praised agreement negotiation at speed.

Referring to the then-prospective trade and cooperation agreement, 2020 Frost said:

‘…we can do this quickly. We are always told we don’t have enough time. But we should take inspiration, I think, from the original Treaty of Rome back in 1957. This was negotiated and signed in just under 9 months – surely we can do as well as that as well as our great predecessors, with all the advantages we have got now?’

But 2021 Frost does not like agreement negotiation at speed: the Northern Irish Protocol was ‘drawn up in extreme haste in a time of great uncertainty’.

The problem here is that there is no deeper thought beneath the phrases employed.

Frost has a fine phrase for negotiation at speed, and he has a fine phrase against negotiation in extreme haste.

But he does not realise nor care that the two phrases conflict: they are both simple expedients to get him through to his next paragraph.

This explains why during the Brexit negotiations Frost has been so constantly wrong-footed.

There is no substance, for all the paraded erudition.

The big negotiation taking place here is not between the United Kingdom and the European Union, but between the David Frost of 2020 and the David Frost of 2021.

And, somehow, both are losing.

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Looking more closely at yesterday’s speech, you will see that it is structured (superficially) as a sequence of five ‘points’:

‘First to say that Brexit has changed our international interests and hence will change our patterns of European relationships – not necessarily fundamentally, but significantly. Second, that Brexit means competition – we will be setting a different path on economic policy. Third, that Brexit was about democracy – it is a democratic project that is bringing politics back home. Fourth, that the EU and we have got into a low-equilibrium somewhat fractious relationship, but that it need not always be like that – but also that it takes two to fix it. And fifth and finally, that fixing the very serious problem we have in the Northern Ireland Protocol is a pre-requisite for getting to a better place.’

Each of these points, however, turn out to be exercises in characterisation.

The United Kingdom position is characterised, and the European Union position is characterised.

Each characterisation is loaded and self-serving: the United Kingdom is portrayed as blameless and misunderstood, and the European Union is depicted as ignorant and even spiteful.

These characterisations are so extreme that both are better described as mischaracterisations.

And so the characterisations dissolve on closer examination as nothing more than excuses and accusations.

For example, take the issue of policy.

At one point Frost says that the United Kingdom will develop more substantial policy relationships with some European Union countries and not others, rather than the European Union as a whole.

But then he complains that the European Union is too rigid in binding the member states together in matters of policy:

‘In most EU member states many important things can’t be changed through elections – trade policy, monetary policy, fiscal policy, important elements of immigration policy, indeed some important aspects of industrial policy.’

Frost does not seem to realise that the United Kingdom is – and will be treated as – a ‘third country’.

The tactic of trying to circumvent the European Union and with engaging member states directly did not work during the Brexit negotiations, and there is no reason to believe it would work now.

*

But the most important part of this speech is about Northern Ireland.

Here he makes some general contentions about sovereignty and the role of the European Court of Justice.

He then insists that the import of these contentions is that the Northern Irish protocol needs to be replaced.

In a way this is a reversal of the usual caricature of continentals being obsessed with airy abstractions, in contrast to our robust Anglo-Saxon empiricism.

For the complaint as articulated by Frost does not amount to much more than a general objection to the European Court of Justice on conceptual grounds.

And, in the meantime, the European Union is proposing a range of practical measures to give efficacy to the Protocol but without removing the minor and residual role of the European Court of Justice.

And so he is wrong-footed again.

*

The one thing in common between the two speeches is that Frost is brashly defiant in his support for Brexit.

He is certain that it was a historical necessity that the United Kingdom had to break free.

This, in turn, means he sneers at the European Union for not understanding the true nature of Brexit and its implications.

But both the 2020 and 2021 speeches reveal that the real failure to understand the implications of Brexit are with Frost and other United Kingdom ministers.

The European Union, on the other hand, seem to understand the (current) United Kingdom government all too well.

Frost complains about lack of trust: ‘we are constantly faced with generalised accusations that can’t be trusted and are not a reasonable international actor’.

But these accusations are not ‘generalised’ – instead they are, to use a phrase, ‘very specific and limited’.

And, according to statements today from a former Brexit adviser, the accusation of bad faith is well grounded.

*

So, yes.

Frost’s speech has historical and probative value.

But it is not an impressive piece of work.

Characterisations (and mischaracterisations) do the work of propositions; accusations pile upon excuses; assertions are implicitly undermined by other assertions; and (ahem) very specific and limited concerns are dismissed as too general to matter.

And so the true historical and probative value of the speech is not as an insight into the thinking of the government at this stage of Brexit, but to its lack of thought.

Here it should be noted that Frost relies on the (supposed) popularity of Brexit as its ultimate justification:

‘That’s why I don’t see anything wrong with Brexit being described as a populist policy. If populism means doing what people want – challenging a technocratic consensus – then I am all for it.’

The wise counterpoint to this populism, of course, was once put as follows: that our ministers and representatives owe us their judgement – and that they betray us instead of serve us if they sacrifice their judgement to public opinion.

And who made this compelling counterpoint so eloquently?

Edmund Burke.

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Why does it matter if the United Kingdom government breaks international law? And do such a breach really mean the Rule of Law is under threat?

12th October 2021

Yesterday many celebrities of legal Twitter were engaged in a detailed discussion about whether the government of the United Kingdom was really threatening ‘the rule of law’.

(Celebrity in legal Twitter is akin to what Jasper Carrott once said of the disc jokey Ed Doolan: world-famous in Birmingham.)

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The discussion was prompted by this thought-provoking tweet and thread from @SpinningHugo:

https://twitter.com/SpinningHugo/status/1447447283570774017

The proposition is as follows: (a) nobody disputes that the United Kingdom breaking international law is a bad thing; (b) but the reason it is a bad thing is not because it offends the ‘rule of law’.

The proposition contains a clever and subtle distinction, and the tweeter (who I do not know personally) puts it forward with characteristic charm and the confidence that is an endearing quality of their Twitter account.

But I fear it is not entirely correct.

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What is correct is that the phrase ‘the rule of law’ can be deployed almost unthinkingly.

And the notion of a thing offending ‘the rule of law’ can also be too easily adopted.

Not every unlawful action by a government is an assault on the ‘the rule of law’.

A government can commit a tort or some other civil wrong; a public authority may act outside of its powers; and agents of the state can commit criminal offences.

That in each instance the courts are capable of holding the relevant entity or individual to account is an example of the rule of law working, rather than it being subverted.

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What is also correct is that ‘international law’ is not like other sorts of law.

For example, much of it exists without any practical means of enforcement or even adjudication.

At law school, I heard an eminent professor describe international law as ‘a fiction’.

There is a saying that domestic law is a matter of law, foreign law is a matter of fact, and international law is a matter of fantasy.

And there is another saying that if a rule is not capable of enforcement then it is not really a ‘law’.

If these sayings have any purchase, then an assertion that there has been breach of international law may perhaps have a political or normative meaning, but it does not necessarily have much legal meaning.

And so a breach of international law by a nation state is not by itself enough to say that the very principle of ‘the rule of law’ – which is attached to all law, domestic and international – is being attacked.

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And, for completeness, ‘the rule of law’ is not always necessarily a good thing.

Many evil things – from slavery to torture – can be placed on a legal basis, and compliance with such laws is not a good thing.

To the extent that we should care about the principle ‘the rule of law’ then other principles are at least as important, such as equality, due process, accountability, democracy, legitimacy, the separation of powers, universal human rights, and so on.

The rule of law, and nothing else, can sometimes be indistinguishable from tyranny.

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But.

I think @SpinningHugo makes two errors.

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The first error is to suggest (by implication) that the breach of international law by the United Kingdom is not capable of being an attack on the principle of ‘the rule of law’.

There are breaches, and there are breaches.

And some breaches can be trivial or substantial examples of non-compliance, and some breaches can be intended or designed to undermine systems (if they exist) of enforcement and adjudication, and may also create a moral hazard that discredits the legal regime more generally.

Such breaches not only mean a rule has been broken, but that the very rules themselves are placed into peril.

In essence: some breaches of international law are also demonstrations that a state actor simply does not believe that legal rules apply to them.

And as ‘the rule of law’ – if it means anything – means that all are subject to the law, then – logically – such an act of open disavowal can only violate that principle.

In essence: any state actor is capable of breaching international law in a manner that undermines the general principle that the law should be obeyed.

Even the United Kingdom.

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The second error is to aver that the recent (and ongoing) post-Brexit conduct of the United Kingdom is not itself a threat to ‘the rule of law’.

(So not only is the United Kingdom capable of breaking international law here in a way that is a threat to the rule of law, but that it is actually doing so.)

The United Kingdom government last year sought to legislate so as to deliberately breach obligations it had entered into under the Northern Irish protocol.

The protocol provides legal obligations on the United Kingdom (and the European Union):

(a) that were freely entered into,

(b) that are capable of enforcement and adjudication through an agreed formal process; and

(c) which have been placed into domestic law by statute.

The Northern Irish protocol is therefore, by any meaningful definition, ‘law’.

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Last year the United Kingdom government was not about to breach the Northern Irish protocol by accident or through recklessness, or on the basis of a grey area of interpretation.

The United Kingdom government intended to breach the the Northern Irish protocol – by deliberately using domestic legislation.

This was, in essence, the United Kingdom government asserting that a legal obligation did not bind it.

Since that threatened (but withdrawn) threat the government has not been so blatant in its commitment to law-breaking.

Yet it is still seeking ways for it to avoid or ignore a legal commitment it entered into, on the basis of a belief that some legal commitments do not apply to the United Kingdom.

This instance of subversive intent, if translated into solid political action, is a threat to ‘the rule of law’.

It is not just that the United Kingdom government will break a legal commitment.

It is also not just that the United Kingdom government does not care that it will break a legal commitment.

It is because the United Kingdom government is intending to break a legal commitment on the basis that it does not believe that it should be bound by that legal commitment.

For such a move not only is a breach of a particular rule, but a fundamental repudiation of the general principle that a legal command should be obeyed.

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Perhaps some may say that some legal commands should not be obeyed.

But we should not fool ourselves into thinking that such disobedience is not a breach of ‘the rule of law’.

It is a breach of ‘the rule of law’ – but it is a breach that you think does not matter.

It is to assert that ‘the rule of law’ sometimes does not matter absolutely.

And that – well – is a different proposition to saying that a breach of international law cannot be a breach of ‘the rule of law’.

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Was Dominic Raab, the justice secretary, aware that the law had already changed when he made his conference speech?

6th October 2021

Yesterday Dominic Raab, the Justice Secretary and Lord Chancellor, made a speech to Conservative party conference.

In that speech, as this blog described yesterday, he cited a 2009 immigration decision as the reason why where needed to be an ‘overhaul’ in 2021 of the Human Rights Act 1998.

This 2009 decision – which was upheld on appeal in 2011 on technical grounds – was (as Adam Wagner has identified) used in a speech of that year by Theresa May, the then Home Secretary:

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But the problem with using this case in a 2021 speech in favour of ‘overhauling’ the Human Rights Act 1998 is that the relevant law changed in 2014.

So: was the justice secretary aware that the law had been changed when he made the speech?

Or was the case used by him (or his speechwriter) without checking whether the law had changed?

I asked the press office of the Ministry of Justice but they could only refer it to the minister’s political advisors, as this was a political speech, not a ministerial speech.

(Which is fair enough.)

I was then contacted by (and I use journalistic convention) ‘sources close to the justice secretary’.

Here it was confirmed that the case alluded to was indeed the 2009 decision.

But I pressed on whether, at the time the secretary of state made the speech, he was aware that the relevant law had changed?

I was then told by ‘sources close to the justice secretary’:

– the Immigration Act 2014 was ‘a step forward’, but that it focused on foreign national offenders serving sentences of four years or more – which left out a large number of less serious offenders (and in the 2009 case the sentence had been 18 months); and

– the 2014 Act also introduced an ‘elastic balancing test’ which the courts apply relying on longstanding case-law, rather than making clear the overwhelming public interest in deportation.

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But.

Neither of these two propositions are correct.

The 2014 changes expressly provide: ‘The deportation of foreign criminals is in the public interest’.

That is, all foreign criminals.

So the 2014 law did makes ‘clear’ that deportations of foreign criminals are in the public interest.

This would apply to the 2009 case.

The changes also expressly provide: ‘The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.’

Again, this applies to all foreign criminals – and not just those with sentences higher than four years.

This also would apply to the 2009 case.

The additional provisions on those with four-year sentences provide that, subject to exceptions such as the person having ‘a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of deportation on the partner or child would be unduly harsh’, there will be a deportation.

But even those deportations are subject to exceptions.

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This more detailed  response from ‘sources close to the justice secretary’ did not answer my question of whether the justice secretary had been aware of the 2014 legal changes, and it appeared to me that this exposition had been mugged-up after the speech.

However, when pressed a third time, I was finally told that the justice secretary had indeed been aware of the 2014 legal changes when he made his speech.

Taking this eventual confirmation at face value then it appears that the justice secretary does not understand the effect of the 2014 legal changes.

The 2014 legal changes made expressly ‘clear’ that ‘the deportation of foreign criminals is in the public interest’ and the ‘more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal’.

So there are either two explanations.

Either: contrary to he assurance of ‘sources close to the justice secretary’ the justice secretary had not actually known the law relating to the 2009 case had changed (and this cannot be admitted).

Or: if he did know of the 2014 changes, the justice secretary had not understood that his 2009 example case had been overtaken by the law.

But what cannot be the case is that the justice secretary both knew and understood that the law had changed in 2014 in respect of the 2009 decision that he is citing as the reason why the Human Rights Act needs to be ‘overhauled’ in 2021.

(And, finally, if there was a need to make changes in this area, those presumably would be in respect of immigration legislation – a Home Office responsibility – rather than the Human Rights Act itself.)

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All because you ‘trigger’ Article 16 that does not make it a gun

4th October 2021

Another Monday, and another week begins with the government of the United Kingdom saying that it going to do something to show how serious it is about the Northern Irish protocol.

And David Frost, the Brexit minister, is again threatening to ‘trigger’ Article 16.

He may well do so, for this government has done dafter things in respect of Brexit and other matters.

But, as this blog has previously averred, if you actually look at what Article 16 says, you will see that it does not expressly provide for the suspension of the protocol.

It instead provides for a process – slow and deliberate – where the parties to the protocol can discuss measures fulfilling certain strict conditions, with the objective of ‘safeguarding’ the protocol.

Article 16 is not much of weapon.

All because you trigger Article 16 that does not make it a gun.

Maybe the European Union and the United Kingdom will do a deal under the cover of the Article 16 process.

Maybe; maybe not.

But the process in and of itself is not something that is intended to disrupt, let alone dismantle, the protocol.

Article 16 is more of a bicycle repair kit than a Beretta handgun.

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And what if Article 16 happens and the United Kingdom – either by law or politics – does not get the deal it is seeking?

What is the United Kingdom to do?

Threaten to trigger Article 16 a second time?

Or a third?

What if Frost’s bluff is called – and (yet again) he does not achieve what he is seeking to achieve?

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The one useful experience that is coming out of this situation is that – one hopes – United Kingdom ministers will be more careful about what international agreements they sign in this post-Brexit period.

An international legal instrument is not akin to a press release to be signed (off) so as to get Brexit done.

Entering into this agreement was a serious commitment, but the United Kingdom government was not serious.

But, just as inexperienced business people may sign one shoddy contract but never sign another one, perhaps the next generation of politicians – both those who make the decisions and those who hold them to account – will take the exercise of entering into a deal more seriously.

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Unless and until the European Union agrees to amend the protocol, the United Kingdom is stuck with the withdrawal deal it signed.

This is the practical reality of ‘getting Brexit done’ and ‘taking back control’ – the United Kingdom is perhaps more reliant on goodwill than before.

This legal dependency is the hidden, inconvenient truth of Brexit – and Brexiters could not have in substance made us any more reliant on the European Union if they had tried.

Brexit did get done – but by giving away control and not by taking it back.

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