Now there are worrying calls for restricting the franchise

7th April 2021

Over at the American site National Review there is a call – in all seriousness – for the franchise to be restricted.

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(‘Don’t give oxygen to such things,’ demand those unaware that ‘not giving oxygen’ to Trumpism and Brexit did nothing to stop the rise of such notions – but this is a law and policy blog and it exists to offer comment on such developments.)

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The contention at the National Review moves from the fact that as there are certain restrictions on voters – for example, felons – to urging that there should be other restrictions.

The entire piece is a practical exercise in political sophistry.

Yet it was commissioned for and published on a well-known website.

It is an attempt to re-open debates that one would have thought were long settled.

It is nothing less than an effort to re-impose Jim Crow type voting restrictions.

It is a dangerous development.

*

This law and policy blog is written from a liberal rather than a democratic perspective.

That is say that there are certain things – such as fundamental human rights – that should not be subject to votes.

Even if a majority of people supported the torture of one human being, that torture would still be absolutely wrong.

Such a liberal perspective is alert to and wary of the consequences of populism and demagogues and majoritarianism.

Democracy can be illiberal – and just because a thing has a democratic mandate, it would not make a thing that is fundamentally illiberal right and proper.

But.

When things are subject to democratic oversight and control, then the votes should be equal and the franchise as universal as possible, and there should not be ‘super-voters’ with more democratic power than others.

In the United Kingdom, it actually used to be the case that such privileged voters did exist – those with more of a ‘stake’ in the community would/should have a better chance of a vote – and these were bog-standard arguments in the lead up to the 1832 reform act.

In the United States, such arguments were used to in effect disenfranchise slaves and those descended from slaves.

The anti-democratic arguments now being put forward have not really been put forward so earnestly and with such force since the 1800s.

It is almost as if the ‘march of democracy’ has not only halted but is now retreating – a corrective to the simple notion of linear political progress.

Authoritarianism and anti-democracy, like illiberalism, has never really gone away – it just was not so prominent for a while, at least in the United Kingdom – making liberals and progressives complacent.

Perhaps such anti-democratic views are just a blip – and we will carry on heading towards the right side of history.

Or perhaps there is no natural line of political progression – and every generation has to win the arguments for liberalism and democracy afresh.

The post-2016 anti-democratic, illiberal turn is not over yet.

Brace, brace.

***

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The Real Citizens of Nowhere – statelessness and the law and the case of Shamima Begum – looking closely at the Begum case part 2

not 2nd March 2021

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‘…you’re a citizen of nowhere.’

Theresa May, then prime minister of the United Kingdom, Birmingham, 2016

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What is a stateless person – a person who is (literally) a citizen of nowhere?

The best starting point for answering this question – a question that is relevant in the topical case of Shamima Begum as well as important generally – is the declaration of human rights of the United Nations.

Article 15 of the declaration provides:

‘(1) Everyone has the right to a nationality.

‘(2) No one shall be arbitrarily deprived of his [or her] nationality nor denied the right to change his nationality.’

A stateless person would thereby a person without nationality, either because they have never had one or because they have been deprived of any nationality that they did have.

That person would be an alien in every country on the planet, without a government obliged to offer protection or help, and without anywhere where they can reside as of right.

Such a predicament would be fundamentally inhumane.

And so that is why the rights to a nationality and against being deprived of any nationality arbitrarily are in the United Nations declaration.

*

You will notice that article 15(2) of the declaration is not an absolute prohibition on a person being deprived of nationality, but a bar on such deprivation being done ‘arbitrarily’.

This would be most relevant when a person has more than one nationality, when one or more of those nationalities is being removed.

But the basic right under article 15(1) is not subject to exceptions: the ‘right to a nationality’ is a right for ‘everyone’. 

And that, for what it is worth, is the fundamental position under international law.

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The next step is a 1954 convention of the United Nations – the Convention Relating to the Status of Stateless Persons – which took effect in 1960.

The key provision of the 1954 convention is article 1(1), which provides a legally significant definition of a ‘stateless person’ (and thereby ‘statelessness’):

‘For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.’

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This definition in article 1(1) of the 1954 convention repays careful consideration.

Indeed, as you will see later, this particular definition matters a lot.

Note what the definition does not say.

For example (omitting certain words and replacing ‘by’ with ‘of’) it does not say:

‘For the purpose of this Convention, the term “stateless person” means a person who is not […] a national [of] any State […].’

So what difference do the omitted words make?

The difference is the crucial phrase (perhaps known better in other contexts): ‘the operation of law.’

This phrase means that, regardless of the facts of a person’s predicament, their nationality is a matter of law.

Not a matter of fact, or of opinion – but a matter of law.

*

So, for example, imagine person [Y].

If the law of country [X] provides that person [Y] is a national of that country, then the legal position is that person [x] has nationality and is not stateless.

It does not matter if person [Y] has never been to country [X].

It does not matter if person [Y] has no personal connection to country [X] and, for example, does not speak the language of country [X] and may even be persecuted or tortured if they were to go to country [X].

It also follows that the mere opinion of anybody involved does not matter.

Even if the government of country [X] opines that person [Y] is not a national, that opinion does not matter if, as a matter of law, person [Y] is a national of country [Y].

All that ultimately matters on the issue is what the law of country [X] provides on the issue, and nothing else.

And once it can be ascertained that person [Y] is, as a matter of law, a national of country [X] then that person is not stateless.

Person [Y]’s personal relationship with country [X] and the state opinion of the government of country [Y] are all irrelevant.

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This absolute priority for the legal position – above the practical facts of the situation – is, as you will see, a feature of this area of law.

Some lawyers will use the Latin phrases de jure and de facto as respective labels for the position as a matter of law and the situation as a matter of fact.

Adopting such terms, the law is that one’s nationality in respect of statelessness is de jure rather than de facto.

Even if the relevant country is far away and about which you know nothing.

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So, in practice: a government of a country (for example, Bangladesh) may well say a person is not a national (or not wanted as a national) – yet what makes that person stateless is not that mere statement by the government, but whether that person is stateless by operation of law of that country.

When the government of a country (for example, Bangladesh) says one thing about whether a person is a national, but the law of that country says another, then the law trumps the government.

The rejection by a government (for example, Bangladesh) may make a person (for example, Begum) stateless de facto but not de jure.

You will see the consequences of this (legalistic) approach in some of the relevant cases (for example, the case of Begum).

And this (legalistic) approach is hard-wired into the very wording of article 1(1) of the 1954 convention.

Let us look at it again (with emphasis added): 

‘For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.’

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Our next step is another United Nations convention – the Convention on the Reduction of Statelessness – of 1961 and which took effect in 1975.

The 1961 convention provides at article 8(1):

‘A Contracting State shall not deprive a person of its nationality if such deprivation would render him [or her] stateless.’

This right looks robust and unequivocal, with no deft legalistic exceptions or qualifications.

This right is subject to exceptions under the article 8(2) of the 1961 convention (which relate to those who obtain nationality by naturalisation) and under the article 8(3) of the 1961 convention (certain disloyal activities).

You did not think that countries would make it that easy for a person to rely on the right under article 8(1) of the 1961 convention, did you?

Of course not.

Article 8(2) and article 8(3) envisage some situations where a person themselves fulfils a condition that allows a country to deprive a person of their nationality.

The notion is that they will only have themselves to blame.

(As for the position under the law of the United Kingdom at the time the 1961 convention took effect, see section 20 of the British Nationality Act 1948 – the predecessor of the current 1981 Act)

However, in the case of Begum, article 8(2) and article 8(3) are not (supposedly) directly relevant, as the position of the government of the United Kingdom in respect of the Begum case is, of course, that depriving her of her United Kingdom citizenship does not render her stateless.

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The position of the government is that Begum is de jure a citizen of Bangladesh.

This is, in part, because the government takes statelessness to mean as it is defined in the 1954 convention – that is as statelessness de jure not de facto.

And so, in his letter of 19th February 2019, the home secretary Sajid Javid said (emphases added):

‘As the Secretary of State, I hereby give notice in accordance with section 40(5) of the British Nationality Act 1981 that I intend to have an order made to deprive you, Shamima Begum of your British citizenship under section 40(2) of the Act. This is because it would be conducive to the public good to do so.

‘The reason for the decision is that you are a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom. In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless.

The emphasised text is crucial.

Without that text, the home secretary may have be barred by section 40(4) of the British Nationality Act 1981:

‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.’

And so, if Begum – by operation of law – is indeed a citizen of Bangladesh then she can – in principle – be deprived of her United Kingdom citizenship without that deprivation being barred by section 40(4) of the 1981 Act (and thereby contrary to international law).

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But it is no longer just the view of the home secretary of the United Kingdom.

The question of whether the deprivation would be such as to render Begum stateless has also been considered by the Special Immigration Appeals Commission, in paragraphs 27 to 139 of its decision.

The commission heard expert evidence on both sides and decided that the law of Bangladesh would be that Begum would be a national of Bangladesh, regardless of the lack of any personal connection with that country.

This is paragraph 121 of the commission decision:

The commission has held that Begum was a citizen of Bangladesh by operation of the law of Bangladesh – regardless of what the government of Bangladesh has said and does say.

Begum has not, according to the commission decision, been rendered stateless.

The commission may be wrong: perhaps the expert evidence was wrong, or the wrong weight has been placed on the evidence, or the commission has applied the wrong legal tests, or the commission has applied legal tests incorrectly.

But, as it stands, the view of the home secretary that the deprivation decision has not made Begum stateless has also been endorsed by an independent body.

This issue of whether Begum would or would not be rendered stateless has, however, been decided only as one preliminary issue – there are several other issues – and there still has not been a final decision by the commission on Begum’s overall appeal of the deprivation.

The recent appeals up to and including the supreme court have been in respect of Begum’s ability to participate in this appeal and on a separate policy matter (which we will look at in another post).

The substantive appeal of the deprivation order is still incomplete (and at the moment it appears that it may be indefinitely stayed  – that is, in effect, adjourned).

The appeal before the commission is in limbo, as is – of course – Shamima Begum.

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This post is part of a series of posts on the Begum case.

There is something wrong – very wrong – about the legal situation of Shamima Begum.

That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.

The legal case is, however, complex – at least on the face of it, with sets of legal proceedings and appeals that have resulted so far in a number of lengthy judgments by variously constituted courts.

So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.

Previous posts have included:

  • initial thoughts on the illiberal supreme court decision (here)
  • the parallel of the supreme court decision with the 1941 case of Liversidge v Anderson (here)
  • the legal power of the home secretary to deprive a person of United Kingdom citizenship (here)

Further posts will show how the home office and the courts dealt (and did not deal) with important issues in this case.

The purpose of this Begum series of posts is to promote the public understanding of law.

The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.

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Comments are welcome, but they are pre-moderated.

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The legal power of the Home Secretary to deprive a person of United Kingdom citizenship – looking closely at the Begum case part 1

28th February 2021

There is something wrong – very wrong – about the legal situation of Shamima Begum.

That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.

The legal case is, however, complex – at least on the face of it, with sets of legal proceedings and appeals that have resulted so far in a number of lengthy judgments by variously constituted courts.

So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.

Is the fault with the substantive law and general government policy?  Or with the particular decisions made by home secretaries?  Or with the lower courts and tribunals?  Or with the higher appeal courts?

Of course, one easy answer is say ‘all of them’ – but even then: what is the allocation and distribution of wrongness in the system?

Previous posts on this blog on the case have put forward some initial impressions on the supreme court judgment of last week and, yesterday, compared the case in general terms with the 1941 decision of Liversidge v Anderson.

Today’s post is on the general subject of the power of the home secretary to deprive a person of British citizenship, subject to the (supposed) prohibition on rendering a person ‘stateless’.

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The power of a home secretary to deprive a person of British citizenship is set out in section 40 of the British Nationality Act 1981.

Note, however, that this is not about powers that actually date back to 1981 – as this provision and the act generally have been heavily amended by successive governments.

This legal power, like many other powers that can be used illiberally, is a legal work-in-progress – constantly being tuned (if not finely) by home office lawyers by legislative amendment so as to make it ever-more difficult for a home secretary’s decisions to be checked and balanced.

*

The key power in the Begum case is at section 40(2):

‘The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.’

This is it – this is the deprivation power.

On the face of section 40(2) alone, any person can be deprived of citizenship not by a decision of an independent court or tribunal but at the simple discretion of a cabinet minister.

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But.

There is then section 40(4), which provides:

‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.’

(The ‘he’ here also means ‘she’ under section 6 of the Interpretation Act 1978.)

On the face of it, section 40(4) would thereby prevent the deprivation power being used so as to render a person stateless.

Yet note, the deft use of the words ‘he is satisfied’.

Read the provision again without those three words to see the difference those words make: ‘The Secretary of State may not make an order under subsection (2) if  […] that the order would make a person stateless.’

The direct legal test is thereby not whether a person is made stateless, but (again) the ‘satisfaction’ of the home secretary.

As we come to look more closely at the Begum case in particular, you will see what rides on words and phrases like this.

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Turning now to the Begum case, we can now see the legal basis of the decision by the then home secretary Sajid Javid of 19th February 2019 (emphases added):

‘As the Secretary of State, I hereby give notice in accordance with section 40(5) of the British Nationality Act 1981 that I intend to have an order made to deprive you, Shamima Begum of your British citizenship under section 40(2) of the Act. This is because it would be conducive to the public good to do so.

‘The reason for the decision is that you are a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom. In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless.’

As you can see, the notice of 19th February 2019 ticks the boxes for both (1) the basic deprivation power and (2) avoiding the statelessness exception.

This determination being made by the home secretary – and given the evidence on which the home secretary purports to rely – the only immediate avenue of appeal of Begum was to the special immigration appeals commission.

*

The next post in this series of posts on the Begum case will set out the relevant law on ‘statelessness’.

Further posts will then show how the home office and the courts dealt (and did not deal) with important issues in this case.

The purpose of this Begum series of posts is to promote the public understanding of law.

The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.

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“In this country, amid the clash of arms, the laws are not silent…judges are no respecters” – the story of when a law lord in 1941 stood up for the rights of an individual against a home secretary, and what then happened to that law lord

27th February 2021

The illiberal and unanimous decision yesterday of the supreme court of the United Kingdom in the Shamima Begum case is reminiscent of another illiberal decision of the highest court, previously known as the appellate committee of the house of lords.

That case – which most lawyers will know and most non-lawyers will not – is Liversidge v Anderson.

This case dealt with the rights of the individual in respect of regulation 18B of the Defence (General) Regulations 1939.

That regulation provided:

‘If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.’

In other words: detention without trial at the discretion of the home secretary.

Of course, many would think such a dreadful thing would never happen in England, with our robust common law rights and so on.

For as even Winston Churchill said:

‘to cast a man into prison without formulating any charge known to the law is in the highest degree odious and forms the basis of all totalitarian regimes’.

(It is worth noting that ‘odious’ was quite the word for Churchill – see also his ‘fight them on the beaches’ speech: ‘Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail’.)

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But although detention without trial was (supposedly) ‘in the highest degree odious’, the United Kingdom did it anyway.

And one of those detained was Robert Liversidge.

The detention order from the home secretary was as follows:

‘DETENTION ORDER.

 ‘Whereas I have reasonable cause to believe Jack Perlzweig alias Robert Liversidge to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him: Now, therefore, I, in pursuance of the power conferred on me by reg. 18B of the Defence (General) Regulations, 1939, hereby make the following order: I direct that the above-mentioned Jack Perlzweig alias Robert Liversidge be detained.
 
 ‘(Signed) John Anderson,
 
‘One of His Majesty’s Principal Secretaries of State’

 

No charge; no prosecution; no trial; no conviction; no sentence.

Just the opinion of the home secretary.

And so Liversidge brought a legal case against the then home secretary Sir John Anderson, and this was the case that reached the house of lords in 1941.

Liversidge, who averred he was falsely imprisoned, wanted to know the case against him.

But Viscount Maugham and the majority of the law lords were having none of Liversidge’s nonsense.

In a sequence of speeches that are rather quite remarkable the law lords – to use Lord Reed’s unfortunate phrase – accorded respect to the determination of the home secretary:

‘there is no appeal from the decision of the Secretary of State in these matters provided only that he acts in good faith’.

The appeal was dismissed, and Liversidge – sitting in Brixton prison – was ordered at the end of Maugham’s speech to pay the home secretary’s legal costs (though it is not clear whether this order was actually made).

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But not all the law lords nodded-along.

Lord Atkin sat through the very same submissions in September 1941, and he came to a very different conclusion.

He gave a dissenting speech which contained this passage (which I here break into smaller paragraphs for flow):

‘I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.
 
‘Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850) 5 Ex 378 , cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman [1941] AC 378, 393 : “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”
 
In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.
 
‘It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
 
‘In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.
 
‘I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.
 
‘To recapitulate: The words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them.
 
‘They are used in the Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular.
 
Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.
 
‘I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’” (“Through the Looking Glass,” c. vi.)
 
‘After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.
 
‘If it be true, as, for the foregoing reasons, I am profoundly convinced it is, that the Home Secretary has not been given an unconditional authority to detain, the true decision in the [case] before us ought not to be difficult to make.’
 
 
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Lord Atkin, 1941: ‘judges are no respecters of persons’
 
Lord Reed, 2021: ‘[the court of appeal] did not give the Home Secretary’s assessment the respect which it should have received’
 
*
 
 
Lord Atkin’s speech in 1941 did not go down well with his fellow judges.
 
Lord Atkin was cancelled.
 
As David Pannick details in his book Judges, the other law lords shunned Atkin.
 
Viscount Maugham, in an extraordinary step, even wrote a letter to the Times about the language used by his fellow law lord (the short house of lords debate on that letter is here.)
 
But Atkin was right.
 
As a later law lord, Lord Diplock said in a 1979 house of lords case:
 
‘For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.’
 
But that was no consolation to Liversidge detained in Brixton prison back in 1941.
 
Nor was it consolation to Atkin – for according to Pannick it was widely believed that Atkin never recovered from the hostility of his fellow judges before his death in 1944.
 
*
 
Perhaps in a few years a supreme court justice may suggest – perhaps cautiously in an extra-judicial lecture, or perhaps more confidently in an actual decision – that the court of appeal got the Begum case right, and the supreme court did not.
 
That will be no consolation to anyone either.
 
But as the 1941 case of Liversidge v Anderson shows, it is not the first time that the judges of the highest court – in the words of one of its greatest former members – ‘show themselves more executive minded than the executive’.
 
And it certainly will not be the last time they do this in respect of the rights of the individual in the face of the powers of a home secretary.
 
***
 
Sources – Judges by David Pannick and In the highest degree odious: detention without trial in wartime Britain by A W Brian Simpson – and both books are highly recommended
 

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Comments are welcome, but they are pre-moderated.

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Legal words v everyday words – how can the killing of six prisoners between the presidential election and inauguration not be a ‘cruel and unusual’ punishment?

27th January 2021

Over at Prospect my column this month is on the grim topic of capital punishment and how former President Trump revived federal executions in the last seven months of his presidency – for my article click and look here.

In this post today I want to expand on the issue I touch on in the introductory paragraphs of that article: what is a ‘cruel and unusual punishment’?

*

The reason this matters, of course, is the eighth amendment to the constitution of the United States, the relevant text of which provides: 

‘nor cruel and unusual punishments inflicted.’  

So if a punishment is cruel and unusual (and note it is ‘and’ and not ‘or’) then it is not only prohibited but also unconstitutional.

Some would contend (in my view rightly) that any use of the death sentence is, at least in modern times, a ‘cruel and unusual punishment’.

But here another part of the constitution is engaged.

The fifth amendment provides, among other things:

‘nor shall any person…be deprived of life, liberty, or property, without due process of law’.

This means that the constitution envisages that a person can be deprived of their life by process of law.

And as United States prosecutors, and supporters of the death penalty often point out, the fifth and the eighth amendments were adopted at the same time (as part of the bill of rights) and thereby should be read together.

Of course, there is a certain irony – cruel perhaps – that the fifth amendment was intended to have a generally liberal effect now has, in respect of capital punishment, an illiberal effect.

So the constitutional position is that capital punishment is permitted (fifth amendment) as long as it is not ‘cruel and unusual’ (eighth amendment).

*

In my Prospect column I argue, by the modern everyday meaning of the words ‘cruel’ and ‘unusual’, that the six executions after Trump was defeated and before the new President Joseph Biden was inaugurated were indeed unusual and cruel.

This argument has three bases.

First, once Trump was defeated it was plain that there would be a new president within weeks who was pledged to end federal executions.

And so if the executions did not take place by 20th January 2021 then the prisoner would not be killed.

They would still be alive today.

Second, federal executions are not usual

Indeed, before Trump there had not been any federal executions for seventeen years and, before then, only three executions since 1966.

Click and have a look at this table.

Of course, executions take place in individual states – though twenty-two states have abolished the death penalty and in a further thirteen states there is either a formal or an informal moratorium.

But at a federal level executions were not, between 1966 and 2020, usual.

And by definition, what is not usual is unusual. 

Third, these final six executions were (especially) cruel.

The prisoner – and those charged with killing the prisoner – knew that there was now a race against time.

This deliberate putting to death of a human being had to be done within days, if it was to be done at all.

The circumstances of the six executions after the election but before inauguration indeed amounted to the application of mental torture as part of the punishment.

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But.

Although words have everyday meanings when those words are in a formal legal instrument, those words also have special legal meanings.

And the words ‘cruel’ and ‘unusual’ have been considered by the United States courts again and again.

Caselaw accumulates like barnacles on a shipwreck, so that little or nothing can now be seen of the original vessel.

The general position now is that whether a punishment is ‘cruel’ goes to the technique used at the point of death (and not the period leading to the execution), and if the punishment is still in use then it cannot be ‘unusual’ (which is fairly circular argument).

(The latest significant case in this grisly caselaw is here.)

What it is plain is that the wording of the constitutional prohibition is not autonomous – that it cannot be used in any given situation, free from the weight of caselaw.

A thing is only ‘cruel’ and/or ‘unusual’ if it accords with what these words mean as a matter of 230 years of caselaw, and not what those words mean in everyday discourse.

And this is both a merit and a flaw of placing rights in formal written instruments, such a a bill of rights.

On one hand, a person can point to the right and say with certainty that they have these fundamental protections; but on the other hand, formality can quickly become rigidity.

There is no easy solution to this problem of how one protects rights with a living, evolving legal instrument.

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None of this is to aver that the executions between the election and the inauguration were unlawful and unconstitutional – the fact that the United States supreme court did not prevent those killings indicates that the punishments were lawful and constitutional.

Nor does this post contend that the constitutional law of the United States can easily be recast so as to render such executions as unlawful and unconstitutional.

The purpose of this post is to illustrate the gap between everyday language and precise legal terminology: that, in these instances, things that are plainly cruel and usual are not ‘cruel and unusual’.

This leads to the wider point about using the law to guarantee rights and freedoms: a general legal instrument quickly attracts caselaw, and that caselaw scopes and often limits the meaning of that instrument.

And so one can end up with the vile spectacle of six human beings being deliberately slaughtered before 20th January 2021 because they would be safe from slaughter if they managed to live beyond that date, and that this horrific episode was, as a matter of law, neither cruel nor unusual.

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Section 007 – how the government authorises criminal activity by its agents, and a telling recent disclosure

16th December 2020

One theme in recent law and policy has been for the government of the United Kingdom to increasingly place itself and its agents above or beyond the law.

There is, of course, a certain hypocrisy in this given how loudly ministers shout about ‘Law and Order!’.

Sometimes this is done subtly, with limits on the scope judicial review, the law of human rights, and the entitlement to legal aid when one is challenging public bodies.

But sometimes it is done quite openly – indeed brazenly.

One example is the current attempt – which I explain in this video for the Financial Times – to make it effectively impossible to prosecute members of the armed forces for war crimes and torture.

 

Another attempt – though it has just been dropped – was to enable ministers to issue regulations that would break the Brexit withdrawal agreement.

And another attempt is the current Covert Human Intelligence Sources (Criminal Conduct) Bill before parliament.

The long title of the Bill expressly states that it is to:

‘Make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.’

The Bill provides for ‘criminal conduct authorisations’ which are defined as ‘authorisation[s] for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’

On the face of the Bill there are no exempt criminal offences – and so, in theory, they would include murder, war crimes and torture.

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At this point one can imagine senior security officials with kindly faces and reassuring manners telling us that, of course, no such offences would ever be committed.

But.

It is a matter of public record that the United Kingdom state was complicit in the murder of civil rights lawyer Patrick Finucane in 1989.

The United Kingdom state has also been complicit in the torture of civilians, in Northern Ireland, Kenya and Iraq.

The sheer volume of accumulated historical evidence is that, yes, we really should be worrying our little heads about what the United Kingdom state and its agents are capable of when they think it can get away with it.

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And there is now a more up-to-date reason to be concerned about the lack of effective controls and accountability.

Here the relevant provision is the wonderfully numbered section 007 of the Intelligence Services Act 1994.

(Ok, it is section 7 – but it amuses me.)

This provides for ministerial authorisations for people to break the law outside the British and Irish isles and then not have any criminal or civil liability for those acts in the United Kingdom.

It is a remarkable and little-known provision, and is worth a good look.

This is the so-called ‘licence to kill’.

And, of course, senior security officials with kindly faces and reassuring manners will tell us that the power would never be abused, and that those granting the authorisations will only do so on the basis of full information.

But as set out in yesterday’s Guardian, there has been a problem.

This was spotted by the fine organisation Reprieve, hidden away on page 59 of a dense 168 page report, in two paragraphs 9.39 and 9.40 (emphasis added):

‘9.39 We reviewed a section 7 submission relating to a high-risk SIS [Secret Intelligence Service] agent case overseas. SIS identified a risk that the agent may be involved in serious criminality overseas. SIS did not encourage, condone or approve any such criminality on the part of their agent. In their submission, SIS set out that they had secured the agent’s cooperation on terms of full transparency about the activities in which the agent was involved. It included some clear ‘red lines’, setting out conduct that was not authorised and would result in the termination of SIS’s relationship with the agent.

‘9.40 On renewal, six months after the original submission, SIS set out a number of indicators that the agent may have been involved in, or have contemplated, the serious criminality referenced above. We concluded that, on the basis of this new information, SIS’s ‘red lines’ had most likely been breached, but the renewal submission failed to make this clear. Whilst the submission referred to SIS’s ‘red lines’ provided information about criminality that may have occurred and noted an increased risk in the case, it did not make expressly clear that SIS’s ‘red lines’ had probably been crossed. We concluded that the renewal did not provide a comprehensive overview of available information which we believe would have provided the Secretary of State with a fuller and more balanced picture. SIS immediately responded to these concerns by updating the FCO.’

Or, as the Guardian rightly put it:

‘MI6 failed to make clear to the foreign secretary that a “high risk agent” operating overseas had probably engaged in “serious criminality” until it was pointed out by an independent regulator last year.’

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This means that there is very recent evidence that the United Kingdom security services do not provide appropriate information to those making authorisations in respect of criminal activity.

If this is happening with section 7 authorisations for foreign law-breaking, there is no reason to believe this will not also happen under the current bill providing for authorisations for domestic law-breaking.

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The United Kingdom government has recently put forward legislative proposals for limiting torture and war crimes prosecutions, authorising criminal conduct for agents of the security forces, and even for powers to break the Brexit withdrawal agreement.

There has never been a government that has put so much legislative effort into making it possible to break laws rather than into making laws.

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Remembering David Cornwell – John le Carré – who would not be surprised at any of this.

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Australia shows the United Kingdom there is another way of being accountable for war crimes

20th November 2020

The United Kingdom government is currently making it (even) more difficult to prosecute its armed services for historic war crimes.

On this I did a video essay for the Financial Times (written and presented by me, produced by the estimable Tom Hannen).

The United Kingdom and war crimes (and torture in particular) is a depressing subject – from Kenya and Northern Ireland to Iraq and Afghanistan, there are cover-ups and other attempts to avoid scrutiny.

But there are other, more refreshing approaches to official accountability.

The Australian government has now published a report into war crimes in Afghanistan by its own special forces.

The report of by Paul Brereton, the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report is an extraordinary and highly important document.

The report is unflinching.

And in response to the report, the Australian government has already taken concrete steps.

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War crimes happen, torture happens – and war crimes and torture can be committed by all sides, not just the ‘baddies’.

This is the nasty truth about conflict and human nature.

The question is about what to do about it when it happens.

One approach comprises official cover-ups, deflections, and smearing those seeking justice and accountability.

This is a misguided, short-term approach.

It means there is a sense of getting away with it, of permissiveness – and, in time, it means the armed services will lose valuable legitimacy when dealing with local populations.

The Australian approach is far harder, but a far better one.

The United Kingdom – as it did with torture in Kenya and Northern Ireland – would much prefer to pretend that these things never happen here.

Or, if there is acceptance that war crimes and torture took place, then there is then a shruggy ‘well, what is wrong with this?’  and ‘so what?’ and this dismissive attitude will get easy nods from political and media supporters.

Yet everything is wrong with war crimes and torture, and high standards matter and make a difference.

And the Australians seem to realise this, but the United Kingdom does not.

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Two gruesome legal topics: the law of slavery and the law of torture

19 October 2020

As a solicitor in practice I tend to specialise in commercial, media and communications law, and as a commentator I tend to explain public and international law.

(And as a historian of sorts, I am interested in law and anthropology and how complex societies can develop oral and written systems of law.)

But in addition to these areas, there are two special legal topics which fascinate and appal me.

Fascination: because I find it hard (as a western liberal writing in 2020) to believe that my own species has used and still uses the concept of law for such purposes, and so I want to understand why.

Why would and do people do these things?

Appalling: because both deal with the worst of human nature.

The first is the law of slavery: the extraordinary notion that there can be property rights for one human being in another human being.

By reason of the Black Lives Matter movement, I have recently published a few things on this (see here, here, here and here).

The second is the law of torture: the regulation of the deliberate and involuntary infliction of cruelty by some human beings on other human beings.

This second horrible subject has come up because of the United Kingdom government now seeking to make it harder to prosecute former and serving service personnel for war crimes and torture.

On this, I have done this video for the Financial Times.

And I have now done this podcast.

Not a pleasant thing to talk about, or to listen to others talking about, but important still the same.

Please watch and listen if you can.

Thank you for taking an interest.

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