Category: United Kingdom Law and Policy

New post at Substack: 2021 and 2022 were the years constitutionalism was tested

31st December 2022

Over at Substack, for paying subscribers, I have posted a 2000 word essay (with even some multi-sentence paragraphs!) reviewing 2021 and 2022 from a constitutionalist perspective.

I will be doing such an essay at Substack every week on Friday for paying subscribers.

(These essays will also be cross-posted on Patreon – and I will also email copies to anyone who has made a PayPal contribution in the last year – just make a “Private” comment below asking for this.)

Normal daily, free-to-read blogging on law and policy will resume here on Monday.

Thank you for reading and supporting this blog.

I wish you a happy and constitutionally dull new year.

How the government won but also lost the court case on Rwanda removal policy

19th December 2022

Today the High Court handed down its judgment in respect of the many legal claims brought against the Rwanda removal policy.

On the face of it, the government of the United Kingdom appear to have won – and that is certainly how the judgment has been reported:

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But.

In two ways the government has not won, and indeed this may not be a welcome judgment for the government.

Let me explain.

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The wide legal challenge was to the policy.

In effect the policy is as follows: the Home Secretary can decide that asylum claims made in the United Kingdom should not be determined here, and that instead the persons who have made those claims should be removed to Rwanda to have their asylum claims determined there.

A legal challenge to any policy is always difficult – almost impossible.

This is partly because courts do not like intervening in matters of policy, as opposed to reviewing particular rules and individual decisions.

It is also partly because to say that a policy is unlawful means, in effect, that every possible rule made under that policy and every possible decision made under that policy will be unlawful.

And it is partly because policies can be adapted and modified so that the possibility of the policy itself always being unlawful can be avoided.

A policy is always the hardest target to hit in the administrative law courts.

It was therefore no great surprise that the High Court in this case – with a bench comprised of the two most experiences judges in administrative law matters – rejected the challenge to the policy as a whole.

And so, the government “won”.

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The government, however, also lost.

In the eight individual cases under review, the High Court decided that the removal decisions be quashed and the Home Secretary take the decisions again with proper regard to individual circumstances.

Look at the final paragraph carefully:

That paragraph indicates that the government lost on nineteen particular decisions in this case.

Nineteen.

Each of those nineteen decisions was legally flawed: every single one.

The policy may well be lawful – but in not one case was the policy lawfully applied.

And so the the government lost all the individual cases.

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Now we come to the real defeat for the government.

The import of the High Court decision is that in respect of each removal to Rwanda under the policy, the Home Office has to apply the policy in a robust and reasoned manner to the individual circumstances of each case in each of the decisions to be made.

Otherwise the removal will be successfully appealed or reviewed.

But for page after page of this judgment there is a catalogue of Home Office errors in respect of each of the cases.

The impression one forms reading the judgment as a whole is that, with the resources and administrative competence available, the Home Office simply is not capable of making all the individual decisions so that many removals to Rwanda are likely.

For the legal issue with decisions which need to be made on individual circumstances is that each decision can be appealed or otherwise legally challenged according to those circumstances.

Or to put it another way: the government has legally saved its Rwandan removal policy at the expense of making the lawful implementation of that policy extraordinarily resource-intensive and financially expensive.

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Of course, this judgment may be appealed by the claimants – though it seems at first read a strong judgment by two highly regarded judges in this field, and I do not think an appeal would be likely to succeed.

And so perhaps the policy under challenge may actually be implemented – though it seems there are no current plans to send any asylum seekers to Rwanda.

But.

Even if this policy is one day lawfully implemented – if – it will be always be an administrative and financial drain of the highest order on the Home Office and thereby the taxpayer.

Many will say that the policy is immoral and should be dropped on that basis alone.

Being immoral, however, does not make a policy unlawful.

But a policy being lawful also does not make it practicable.

The government and its supporters may raise a cheer that the policy is itself has been held to be not unlawful.

But today’s judgment means that – like the chartered flights to Rwanda last summer – the lawful implementation of the policy may never really get off the ground.

 

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How the campaign to stop the United Kingdom government from making it more difficult to prosecute war crimes was won

16th December 2022

Sometimes legal things do not always end badly.

Two years ago, in 2020, I did a video for the Financial Times on how the United Kingdom government was then making it more difficult for former United Kingdom service personnel to be prosecuted for war crimes.

The government was in 2020-21 using a Bill to make it more difficult for any historic civil or criminal legal action to be brought against former service personnel and – for some reason – torture and war crimes would be among those offences that would be made more difficult to prosecute.

Whatever that reason was, it was not a good reason.

There are certain offences so grave that there should not be formal or effective immunity for those who commit those crimes.

And this was not about battlefield or front line operations, but about the treatment of civilians or captives.

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Many – including serving and former military personnel – were deeply unhappy with this proposed immunity.

And the fine people at Freedom from Torture and at other campaign groups put together an impressive and persuasive campaign against the proposed legislation:

The pressure mounted, and the Bill’s progress through Parliament was getting trickier.

And then, in April 2021, the government capitulated:

And so the Bill passed into law with the following exemptions:

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Two years later, as this blog set out yesterday, a full statutory inquiry has now been announced into illegal actions by service personnel in Afghanistan,

For such an inquiry to be announced there must be some significant prima facie evidence which has come to light, even if that evidence is not conclusive about any wrongdoing.

Yet just two years ago, the United Kingdom government was anxiously seeking to legislate so as to make it far more practically difficult for any historic war crimes to be prosecuted.

Thanks to the campaigners at Freedom from Torture and elsewhere, that legislative proposal was checked.

As the post on this blog also averred yesterday, it is difficult – legally, politically, culturally – for our armed services (and security services and police services) to ever be held to account for possible wrongdoing.

And the fact that there is sufficient information now available to trigger a full statutory inquiry (and this can be said without prejudice to that inquiry’s conclusions) means that those who campaigned against the exemption for war crimes were entirely right to do so.

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Why the inquiry announced into potential war crimes is interesting – very interesting

15th December 2022

Now this is something interesting.

Very interesting.

As reported by Joshua Rozenberg, a senior judge has been appointed to head a full statutory inquiry to “investigate into and report on alleged unlawful activity by British armed forces in their conduct of deliberate detention operations (DDO) in Afghanistan during the period mid-2010 to mid-2013”.

The terms of reference, which should be read carefully, are here.

There are usually formidable barriers to any such investigation taking place – legal, political, and cultural.

Of these, the cultural barrier is always the hardest to clear.

Any allegation of wrongdoing by our armed forces – and also our security and police forces – is usually first met by denialism: we are the goodies, and these things would not be done by us.

Then there is derision: how dare you criticise those in the battlefield and on the front line from the comfort of your armchairs.

(This response is often deployed even when the alleged wrongdoing is far away from the battlefield or the front line, and is in respect of the treatment of captive non-combatants and civilians.)

Next will come the misdirections: counter allegations and smears about ambulance-chasing lawyers and compensation-seeking clients.

(And, indeed, there can be bad lawyers, just as there can be bad soldiers and bad police officers and security operatives, for there is good and bad in every profession – it is just that some professions are more accepting of this possibility.)

Once these barriers of denial, derision and misdirection are cleared, and the facts and evidence are incontestable, then there will come the shrugs of “so what?” and the assertions of moral equivalence.

Such things do not matter, we will be told, and everyone does it.

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What there will rarely be is anyone actually being held properly to account.

The cultural presumption against any wrongdoing by our armed forces – and by our security and police forces – is so powerful that they hardly need any formal legal immunity.

But.

Something is up here which means the government is not even attempting to deploy denial, derision or misdirection.

Maybe the government knows that such things will not wash here.

The government has instead gone to appointing a highly-regarded judge with an outstanding reputation and given him the strongest possible legal powers.

This would not be done lightly.

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This inquiry will be worth watching carefully.

Perhaps nothing is afoot.

Perhaps there is nothing to see here.

But for some reason the government does not think that denial, derision or misdirection will be enough for disposing of this matter.

So this inquiry is interesting.

Very interesting.

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POSTSCRIPT – 16th December 2022

 

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Today 71 Members of Parliament supported a Bill that would have allowed the government to break international law on asylum seekers

14th December 2022

Earlier today, 71 Members of Parliament supported a Bill that would allow the government to send asylum seekers back to the countries from where they had most immediately come from, regardless of international law.

The Asylum Seekers (Return to Safe Countries) Bill is here.

You will see in the Bill there is this clause one:

It is not a well-drafted Bill.

Look at that clause one again, and see if you can spot the term “asylum seeker”.

You will not find it in the substantive and operative text, but only in the title of the clause.

Nonetheless, clause four of the Bill defines “asylum seeker” as follows:

(This is therefore a shoddy bit of legislative drafting: defining a term and then not actually using it in the substantive and operative provision is a howler.)

But let us pretend that the drafter of the Bill had got it right and included the defined term in the substantive and operative provision, rather than just in a title of a clause.

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As it stands, my understanding is that whether an asylum seeker has come from a “safe country” may affect the credibility of an asylum application:

This means it is a factor that goes to the exercise of the discretion of the decision maker on the asylum application.

But.

The Bill presented today goes beyond such issues of credibility, and requires that provisions be made for the asylum seeker’s immediate removal if they have arrived from a “safe country” – even if that is not where from where they are ultimately fleeing.

If you look at the scheduled list of “safe countries” you will see that it is unlikely for any asylum seeker to have arrived here – at least by boat – without coming from one of those listed:

Ireland, Spain, Portugal, France, Belgium, the Netherlands, Germany, Norway, Iceland – and all other geographically close countries – are “safe countries”.

And so if today’s Bill was passed into law, then any asylum seeker – even if they were fleeing from Afghanistan, Iraq or elsewhere – would be returned to the “safe country” from which they had most immediately left to get to the United Kingdom, regardless of the United Kingdom’s obligations under the Convention Relating to the Status of Refugees.

The United Kingdom’s obligations under the Convention Relating to the Status of Refugees apply regardless to the route by which the asylum seeker has reached our shores.

Even the current law sets out that a route here via “safe countries” only goes to credibility.

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Some may want to dismiss today’s vote – perhaps even scoff at it.

But it is significant.

I remember back in October 2011 the scoffing at the 111 Members of Parliament who voted against the government for a referendum on the European Union.

We are not scoffing now.

Similarly, 71 is not a trivial number of Members of Parliament.

And despite the government not supporting today’s Bill, the 71 Members of Parliament voted so as to enable the government to break international law anyway.

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There is something worrying with the readiness of Members of Parliament to support legislation that expressly enables the government to break its international legal obligations, whether it is the Northern Irish Protocol Bill or today’s Asylum Seekers (Removal to Safe Countries) Bill.

Yes, the Bill’s supporters lost – today.

But as in 2011, such a rebellion is perhaps a sign of things to come.

Today’s vote is not a good sign.

Brace, brace.

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The loss of the practical approach to UK-EU relations

12th December 2022

Thinking and writing about Brexit (and, yes, the book is still going) has made me realise that it is less about “Remain” losing and “Leave” winning, but more about the loss – or absence – of something else.

What that missing something is not the “middle” – for that suggests that it is merely a compromise between two extremes.

It was a particular approach to dealing with and understanding the European Union and its predecessor Community.

The approach can be seen in the works of the late economic historian Alan Milward.

See this from an obituary:

“Rejecting both past and present myths about the EU he argued that, far from being a federal project to transcend the nation state, it was (and is) a complex instrument aimed at maintaining the viability of nation states in Europe… 

…his approach calls into question the ‘founding myths’ of European unity associated with the names of Jean Monnet and Robert Schuman, while convincingly demolishing one of the long-standing clichés of anti-EU rhetoric in the UK, namely that the EU is a unifying federal project….

…here is what Alan considered a lazy cliché, though it is still widely held in some British political circles: that the EU was the result of an aggrandising federal strategy promoted by such figures as Schuman and Monnet, and reflecting a Franco-German accord aimed at domination by erasing national states. Alan pointed out that all these rather abstract approaches failed to account for the dynamics of the EU, and instead he conducted a detailed examination of the strategies and negotiations that had led to expansion…

….The ‘Eurosceptic’ nightmare of an encroaching federal project was in Alan’s view a serious misrepresentation of the record.

But if Alan Milward was uncomfortable reading for Eurosceptics he was no easier for Europhiles.”

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Milward, tongue-in-cheek, even entitled a chapter in a book as follows:

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Milward’s general approach was not an extreme view – indeed Milward was one of the official historians of the United Kingdom’s relationship with the European Communities.

It is also a view I associate with the primary architect of the form which the Single Market finally took, Arthur Cockfield.

Appointed to the European Commission by then prime minister Margaret Thatcher, Cockfield is in my mind the most significant Conservative politician of the 1980s, after the prime minister who appointed him.

As I once said on this blog, Lord Cockfield pushed forward the Single Market in a practical and sustainable way, rather than through grand design and heady rhetoric.

My January 2017 FT piece on Lord Cockfield is here.

In that I said about how he approached the Single Market:

“In 1985, Cockfield (with the full support of the then commission president Jacques Delors) produced his famous white paper in a matter of weeks, and so sound and thought-through was its content that it was used as a blueprint thereafter.”

Cockfield looked at what worked, and what would work, at a national level, and then moved on practically from there.

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The European Communities and then the European Union were not necessarily a grand federalist project, as wanted by some of its founders and as feared by its opponents.

It was (and still is) “supranational” – and so beneath the cloak of heady rhetoric, it was the means by which national interests could be and were promoted and reconciled.

For the United Kingdom, our membership record was in part rebates and opt-outs, so effective were we in promoting our (perceived) national interests.

And our policy on European integration was about putting aside the absolute positions of both sides and, well, just practically getting on with what worked for the United Kingdom.

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But.

By 2015-16, this sensible pragmatism was no longer in the political ascendency in the United Kingdom.

Which is odd, in a way, as the failure of the grandiosely titled “Constitutional Treaty” was ten years or so in the past (though many of its provisions were added by amendment to the existing Rome and Maastricht treaties), and there were no new major treaties in the offing.

It is this absence of a thing – rather than the presence of “Remain” and “Leave” – which is, in my view, a key to understanding Brexit.

And it is harder to explain something not being there than it is to explain what was there in 2015-16, and thereafter.

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“Is there any point to which you would wish to draw my attention?”

“To the curious incident of the dog in the night-time.”

“The dog did nothing in the night-time.”

“That was the curious incident,” remarked Sherlock Holmes.

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What is going to now happen with the Bill of Rights?

9th December 2022

You really would need a heart of stone not to laugh like a drain:

This blog has previously compared Dominic Raab’s quest to repeal the Human Rights Act with Captain Ahab’s quest to get Moby Dick.

And it would appear that Raab is going to fail, again.

It looks likely that his “Bill of Rights” – which was to repeal the Human Rights Act and to make it more practically difficult to rely on the European Convention on Human Rights  – will be dropped.

As it is, there has been no legislative movement on the Bill since 22 June 2022, which is now almost six months ago:

The Human Rights Act 1998 will still be there, and Dominic Raab may soon not be.

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But.

Those generally supportive of the Human Rights Act and the European Convention on Human Rights should not be tempted into complacency by the apparent dropping of the Bill.

There are many ways a canny government can subvert human rights protections – subtle, hidden ways.

All that has failed here is a loud and clumsy frontal attack.

In a way, such performative proposals are the easiest to deal with, as they often collapse from their own absurdity.

The Home Secretary Suella Braverman is also no friend of the European Convention on Human Rights, but she and her Home Office of lawyers will come up with less obvious proposals in upcoming legislation.

The convention itself is fairly safe as part of our domestic law, as the Good Friday Agreement expressly requires convention rights to be directly enforceable in the courts of Northern Ireland.

There is thereby little-to-no chance that the convention will be taken out of our domestic law.

And there now seems little chance that the Human Rights Act, which gives effect to the convention in our domestic law, will itself be repealed.

But in the two or so years before the latest date for the next general election – January 2025 – there is a great deal ambitious ministers can do try to do with more focused legislation.

So while we can afford a moment at this festive time of merriment to have a hearty cheer at the apparent failure of the Bill of Rights, we must stop the cheering when the Christmas decorations come down.

And be braced, braced for the new year.

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Centralisation is inevitable in the United Kingdom, unless there are radical reforms which no government will make

5th December 2022

The former prime minister Gordon Brown, on behalf of the opposition Labour party, has put forward proposals for de-centralising the state of the United Kingdom.

This is rather ironic in that Brown, as chancellor of the exchequer, was one of the most centralising ministers of modern times.

Under Brown the Treasury dominated Whitehall and the civil service generally, and it also sought to enforce discipline on the public sector generally.

(I know this, as I was a civil service lawyer at Brown’s Office of Government Commerce, which was one of the ways the Treasury sought to control and shape central and local government.)

Perhaps Brown has since had a conversion.

He was, after all, the politician who once gave away the powers of the Treasury in respect of interest rates to an independent Bank of England.

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But the problem of centralisation is bigger than Brown or any one politician.

Centralisation is the gravitational pull of the constitution of the United Kingdom.

The force can be bucked from time-to-time, but it will always be there.

In legal terms, the gravitational pull comes from the doctrines of the supremacy of parliament and the royal prerogative.

All public bodies, other than parliament and the crown, are subject to the ultimate control of law made by the crown-in-parliament.

Even the Scottish Parliament, as the Supreme Court recently decided, is effectively no more than a statutory corporation subject to a strict rule of ultra vires.

Local government bodies are in similar but worse positions.

In policy and political terms, a further gravitational pull comes from the Treasury.

The Treasury dominates public spending and public revenues.

No other public body is likely to be given absolute autonomy over spending and revenues.

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Politicians may go through the motions of de-centralisation, with a token development here and some well-meaning gesture there.

But the fundamental forces generated by the Westminster parliament and HM Treasury will not go away.

It would only be by devolution and regional settlements so radical that the powers of Westminster and Whitehall were vanquished forever that de-centralisation would be sustainable.

Self-denial would not enough – what would be needed would be constitutional self-destruction.

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This self-destruction is never going to happen – at least not easily.

Scotland and Wales are not going to be granted dominion status, like Australia or Canada, with their Parliament and Senedd being co-equal with Westminster’s assembly.

The regions are not going to be permitted to become like American states or German Länder, with powers that no central government can gainsay.

But without such radical constitutional surgery, the relentless force of centralisation will be there.

No United Kingdom government is going to freely give away its legislative power in parliament or its policy dominance with the Treasury.

And so we will just have tokens and gestures of de-centralisation again, only to fail; and then – in a few more years – these motions of de-centralisation will be repeated, and they will fail again.

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Prisons will not be reformed until and unless we rethink our views on punishment and retribution

2nd December 2022

Here is the introduction to a thing about prisons I wrote at the Financial Times in 2013:

We are all, of course, familiar with the notion of prisons – and many of us will have Very Strong Opinions about the lengths of custodial sentences:

“Six years! Eight years! Fifteen years! More, more!”

“Higher, higher, higher!”

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But.

For the reasons set out in that Financial Times piece, prisons are a strange as well as counter-productive idea for dealing with most crimes.

Prisons, generally speaking, are an expensive way of making bad people worse.

But the notion of incarceration is so deeply embedded in our collective consciousness it takes real effort to dislodge it.

It was not always like this.

In some earlier times, prisons were where you kept those charged with a crime until their cases could be heard and any sentences – capital, corporal, transportation – could be imposed.

Imprisonment itself was thereby a means to an end, rather than the punishment for criminal activity.

(The position for civil matters was different, with the debtors’ prisons, asylums and workhouses, all keeping certain undesirables out of the way.)

Around 1800 imprisonment became the normal punishment itself for crime – though for many onlookers the loss of liberty was not enough: prisons also had to be as miserable if not brutal as possible.

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And little, if any, thought is ever given to the (innocent) families and dependents of those incarcerated.

If they are thought about at all, it is with a shrug and a vague idea that it is the criminals who are to be blamed and/or that their (innocent) families and dependents are tainted by association.

And so that the innocent suffer becomes an output of the criminal justice system, as well as the protection of the innocent being the system’s supposed purpose.

The state has to destroy innocent lives, so as to protect them.

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There are at least two problems for any reform of prisons.

The first is that imprisonment is central to how society thinks about the punishment of crime.

A convicted person receiving a range of sanctions will still be described “as walking free from court” by outraged newspapers to their outraged readers.

The second is a consensus of what should replace imprisonment, especially given the popular view that retribution is the central purpose of punishment.

Of course, those who pose a danger to others or commit murders and other serious offences against the person should be locked away – and, unlike many liberals, I even support whole-life tariffs in exceptional circumstances.

But until and unless we rethink our views about punishment and retribution, the current expensive and damaging system will continue, for want of any alternative.

I was once asked what current day practice would be looked on in the future as akin to how we now see those who facilitated slavery.

My answer, more with hope than expectation, was: incarceration being considered the norm for punishments, with any alternative having to be justified.

Anyway, this post was triggered by reading this piece in the Guardian.

Let me know below what you think – about the points I set out above and the Guardian article, and what you think about prisons and imprisonment as punishment generally.

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We are not only in the age of easy answers but also in the age of easy-to-avoid questions

28th November 2022

Somebody over on Twitter thoughtfully dug up something I wrote back in 2017:

https://twitter.com/sunildvr/status/1595914638109048832

I think the piece – which links Brexit with the Iraq invasion and other follies – holds up well.

But I also now think the problem identified is only part of the problem.

This because “easy answers” are only possible when hard questions are easily evaded.

For example, one of the most depressing features of contemporary political discourse is the frequency of answers that begin with “I will take no lectures from…”, “I give no apologies for…”, “what people want to know is…”, “what the public expects is….”, and, of course, “let me be absolutely clear….”.

These non-answers render almost all political interviews – and many parliamentary questions – pointless.

Few questions can land, and accountability is brushed off.

And what is most depressing: those watching and listening do not seem to care.

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This blog has previously averred that the problem is not so much that politicians lie but that voters do not seem to care about being lied to.

And so, until and unless voters care about being lied to, then politicians will get away with their dishonesty.

Similarly, until and unless voters care about politicians not answering questions, then politicians will get away with their evasions.

Often this is not the fault of the interviewer or other questioner.

There are some cracking questions asked of politicians.

But there are not many cracking answers.

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There is a fundamental disconnect about accountability in our politics.

At law, of course, a witness will be under pain of perjury.

(And the professional advocate asking the questions will be under their own rules about what questions can be properly put.)

There is an attractive notion that ministers, for example, should also be put under pain of perjury for their answers.

Attractive – but misguided.

The solution to the failure of accountability in parliament is not, in my view, to make parliament more like a court.

It is to make those in and watching Parliament care more about the standard of answers.

As it stands, neither the Speaker nor anyone else is personally responsible for ensuring that questions are properly answered in Parliament.

Instead, as with the investigation into Boris Johnson, it is left to a committee some months later to make a determination or not.

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Rather than some paper reforms or legislative changes, it is the culture of Parliament which is most urgently in need of reform.

Members of Parliament, on both sides of the House of Commons, need to care more about the answers they are given, and to be less tolerant of evasions – even if the questions are from political opponents.

For when questions have purchase – where questions cannot be deflected – then non-answers and easy answers have no hiding place.

Politicians showing leadership on this matter makes it more likely that the public will come to care more about what they are told – and what they are not told.

And that is the real answer to the hard question of how political accountability and scrutiny is made more effective.

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