Category: Policy and Policy-Making

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.

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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.

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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.

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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.

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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.

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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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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

*

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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