Category: United Kingdom Law and Policy

The United Kingdom government says yet again it will break international law – and why this is daft, dangerous, and dishonest

7th March 2021

Another month, another move by the government by the United Kingdom that will break international law.

This time it is the announcement of a unilateral move in respect of a grace period for for temporary agrifood movements to Northern Ireland.

This, of course, from a United Kingdom government that repeatedly boasted of its readiness for a swift withdrawal from the European Union without any agreements in place.

Now the government of the United Kingdom wants grace periods – the latest in a succession of extensions and ‘implementation’ and ‘transition’ arrangements, all with the effect of the government of the United Kingdom pretending to itself and others that there has not been any actual departure from the European Union.

And this is not in respect of any old international obligation imposed by some outside body – but in respect of obligations that this United Kingdom recently negotiated, signed, obtained a mandate for at a general election, and rushed through parliament without scrutiny.

It is all rather daft.

One of the wonders of the age is that so many political and media supporters of the government still clap and cheer at these self-inflicted pratfalls.

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In turn, the European Union is unequivocal:

‘Following the UK government’s statement today, Vice-President Šefčovič has expressed the EU’s strong concerns over the UK’s unilateral action, as this amounts to a violation of the relevant substantive provisions of the Protocol on Ireland/Northern Ireland and the good faith obligation under the Withdrawal Agreement.

‘This is the second time that the UK government is set to breach international law.’

This response from the European Union indicates not only why the threatened unilateral breach is daft – but also why it is also dangerous.

The post-Brexit future of the United Kingdom now depends on being able to be taken seriously as an independent international trade partner.

But each signal that the government of the United Kingdom will casually breach obligations into which itself negotiated and entered is a signal that the United Kingdom is not to be trusted.

This bad faith will have two effects.

First, doors will silently close on the United Kingdom – as why would any trading nation strike a substantial deal with the United Kingdom when the United Kingdom shows itself willing to break such an agreement within weeks?

And second, those agreements that do go ahead will have built into them protections and allocations of risk to address the United Kingdom’s untrustworthiness.

No sensible country watching any of this will assume there will be good faith from the United Kingdom in any international agreement.

The trade negotiators of the United Kingdom may as well all turn up to any negotiation sessions wearing sandwich boards saying ‘kick us’.

This is the moral hazard that the United Kingdom has created for itself.

And it is the very last thing a country in the position of the United Kingdom should be doing, as it moves into its post-Brexit future.

Indeed, the government should be doing the opposite: making sure that every move and statement is geared towards building up international credibility.

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As the historian Robert Saunders avers, the ultimate problem here is honesty – with itself and its supporters, as well as others:

That this observation is, well, so obvious would make one think there could perhaps be a quick moment of realisation – that the government and its supporters will realise the folly of their bad faith.

But there is a real risk that the government of the United Kingdom will keep on with this daft, disastrous and dishonest approach – as the marginal political gains seem preferable to facing up to the structural and strategic damage.

The adverse consequences will just be factored into elsewhere in the international arrangements (and lack of arrangements ) of the United Kingdom.

There is no such thing as a free lunge to lawlessness and bad faith.

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Law and policy after Trump and Brexit: what happens if hyper-partisanship and populist nationalist authoritarianism does not fade away?

6th March 2021

As the year 2016 recedes there will be a temptation to think that the politics of 2016 will eventually recede too.

Things come and go, and human affairs often move in circles – a period of illiberalism will surely be followed, soon enough, by a liberal spring.

The days will start getting lighter, and so on.

But what if that does not happen – and the days stay just as dark, and perhaps get even darker.

What if Trump and Brexit were not low-points but preludes?

Such have been the various social, economic, technological and media dislocations of the last couple of decades, there is no particular reason to believe that we will have a happy return to the certainties of a previous political order.

In the United Kingdom, for example, we still have the government gaming legality and threatening – again – to break the law to the claps and cheers of the easily impressed.

In the United States, Trump may have (temporarily) gone – but Trumpism certainly has not.

Certain politicians know that appealing to and motivating a particular illiberal constituency will be sufficient to keep them in or close to power. 

And this sort of politics will mean that constitutional norms will continue to be contested and politicised.

If this dismal prospect is in the offing, then what is there to do from a liberal constitutionalist perspective?

From the point of view that there is a balance between the rights of an individual and the powers of the state, and that each element of the state – and especially the executive – should be subject to checks and balances.

What should one do if things do not, eventually, settle down?

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This is a serious problem – as liberal constitutionalism is not well suited to hyper-partisanship.

Liberal constitutionalists who react with outrage or despair are the ‘owned libs’ whose adverse reactions are validation of the provocations.

And those who seek to avoid confrontation run the unpleasant risks of quietism.

Perhaps, as one Victorian politician put it: not all problems have solutions.

Perhaps it is now the lot of liberal constitutionalists just to try to protect what they can in the face of illiberal onslaught.

As this blog contended back on new year’s eve, there is a public good in pointing out that things are wrong, and in explaining how and why those things are wrong.

That is: in describing the world that is passing away.

It is a depressing predicament.

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All this said, there is some scope for optimism.

Even taking Brexit and Trump at their highest, both were checked by constitutionalism.

There was no hard Brexit – and the two Miller cases and the Benn Act ensured that there was both a withdrawal agreement and a trade and cooperation agreement.

There was not a successful coup in the United States of America – the electoral college was not subverted.

Liberal constitutionalism has taken a substantial bashing in both the United Kingdom and the United States – as well as elsewhere – but it has not (yet) collapsed, and indeed it has shown marked resilience.

Liberal constitutionalism is perhaps turning out to have been stronger than those of us at the time realised.

And so there is still a role for liberal constitutionalism in the post-Brexit and post-Trump age.

The huffs and puffs have not (yet) blown the liberal constitutionalist house down.

We may be in in a post-Brexit and post-Trump age – but we not (yet) in a post-liberal and pst-constitutionalist age.

*****

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A close reading of public domain information regarding the settlement between Philip Rutnam and the Home Office

5 March 2021

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 ‘Time to form a square around the Prittster’

– prime minister Boris Johnson, as reported on 20th November 2020

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‘Expected value is the product of variable such as a risk multiplied by its probability of occurrence’

– Central Government Guidance on Appraisal and Evaluation (‘the Green Book’), 2020 edition, p. 140

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We now know what appears to be the financial value of a square formed about the Prittster.

According to my Financial Times colleague, the well-connected Sebastian Payne, the cost of yesterday’s settlement of the claim brought by Philip Rutnam against the home offic is at least £340,000 plus £30,000 of legal costs.

https://twitter.com/SebastianEPayne/status/1367517429115609091

There would also be other costs incurred by the home office, including for its own external counsel.

This is a substantial – indeed extraordinary – amount of money for a settlement of a claim – especially when on other matters the home office are often somewhat parsimonious over similar amounts of money

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So what can be worked out about this settlement?

Let us start on a light note with how the news of the settlement was released.

Here we should imagine a zoom call discussion between a home office lawyer and media advisor:

Media adviser – How do we spin – I mean present – the settlement with Rutnam?

Lawyer – We can say we have settled without admitting liability

Media adviser – Doesn’t that just mean the same thing as the case has settled?

Lawyer – Yes, but political reporters will not know that

Media adviser – Ok – but can we pad it out even more?

Lawyer – We can also say that we were right to defend the case

Media adviser – But isn’t that just another way of saying no liability is admitted?

Lawyer – Yes 

Media adviser – So we should say in effect that we have settled because we settled because we settled?

Lawyer – Exactly

Media adviser – And that will fill up their ‘breaking news’ tweets leaving little room for anything else – oh, that is genius

Lawyer – Thank you, that is kind

Ahem.

All that government statement says in that statement is that the home office has settled the case, three times.

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More important – and interesting – is how that settlement amount was authorised.

The home office released this statement yesterday:

‘The government and Sir Philip’s representatives have jointly concluded that it is in both parties’ best interests to reach a settlement at this stage rather than continuing to prepare for an employment tribunal.’

This statement shows that a decision was made by the government to settle rather than to proceed to trial.

The statement also expressly states that this decision was made in the government’s best interests.

This indicates – if not demonstrates – that the decision to settle was made in accordance with the principles set out in the ‘Green Book’ – the common name for Central Government Guidance on Appraisal and Evaluation.

The Green Book sets out how a government department should approach dealing with liabilities and risks.

In essence, the Green Book provides the basis for how cost-benefit analyses are conducted in Whitehall.

In civil service speak: ‘[e]xpected value is the product of variable such as a risk multiplied by its probability of occurrence’.

The ‘concluded…best interests’ language of the home office statement means that a decision was made that settlement was more beneficial to the home office than the risks of proceeding with the case.

Or more bluntly: the home office realised it was likely to lose at trial and to lose badly.

Only if this decision was made on that basis, would – absent a ministerial direction overruling officials – such a payment be permissible in accordance with Green Book principles.

And the ‘concluded…best interests’ language tells against any ministerial direction (which, in any case, would one day be disclosed).

So, if this assumption is correct, then the case was closed down not (just) to save a minister from embarrassment but because of the real risk of a heavy defeat at the tribunal – a defeat which ran the serious risk of costing the home office more than £370,000.

The prime minister may have wanted a square to be formed around the Prittster – but that would not itself explain a payment made in accordance with Green Book principles.

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And so we come to the claim.

The amounts recoverable from most employment tribunal claims are capped, and so an employment tribunal claim even by a highly paid senior civil servant would not normally result in compensation in the area of the amount paid in this settlement.

And employment tribunals do not normally award costs – in lawyer speak, costs do not ‘follow the event’.

So what was different here?

If we go back to the statement made by Rutnam’s trade union when the claim was launched, there is a clue:

‘This morning, Sir Philip, with the support of his legal team and the FDA, submitted a claim to the employment tribunal for unfair (constructive) dismissal and whistleblowing against the Home Secretary.’

This was, in part, a whistleblowing claim.

And as such – under sections 103A and 124(1A) of the Employment Rights Act 1996 (as amended) there is no cap on compensation if the reason – or principal reason – for the dismissal is in respect of a protected disclosure.

On this basis, and given the settlement amount, the claims made were regarded (at least potentially) as principally a whistleblowing case.

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But – is not this case more about bullying than whistleblowing?

Here a passage in this Guardian report may be relevant:

‘Rutnam’s case was expected to focus on his claims that in late 2019 and early 2020 he challenged Patel’s alleged mistreatment of senior civil servants in the Home Office, and that he was then hounded out of his job through anonymous briefings.

‘Reports claimed that a senior Home Office official collapsed after a fractious meeting with Patel. She was also accused of successfully asking for another senior official in the department to be moved from their job.

‘Rutnam, a public servant for 30 years, subsequently wrote to all senior civil servants in the department highlighting the dangers of workplace stress. He also made clear that they could not be expected to do unrealistic work outside office hours.’

Under section 1 of the Public Interest Disclosure Act 1998 there are many ways a disclosure can qualify for legal protection – but the key thing is that such disclosure can be internal to a workplace, even to a boss, and not external disclosure to, say, the press.

On the face of the available information, and on the assumptions made above, it would appear that:

(a) in 2019-20 Rutnam made one or more disclosures internally within government in respect of workplace bullying;

(b) his claim for unfair dismissal in April 2020 had as a principal ground that such disclosure was the main reason for his constructive dismissal; and

(c) by March 2021 it was plain to the home office that this principal ground would be likely to succeed at trial.

Unless these (or similar) facts are true, then it is hard to explain why the home office, following Green Book principles, would settle this claim, for this amount, and at this time.

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And so now: timing.

The obligations under the Green Book are constant and so would have been just as applicable when the claim was made as they are now.

But the home office waited nearly a year before settling the claim.

And a trial was fixed for September this year.

So something must have happened for the claim to have settled now rather than before now or later.

Something must have tipped the Green Book decision-making in favour of settlement.

There is more than one possibility for this.

It may well be that this was just when the settlement negotiations happened to come to an end, and the Green Book decision happened some time ago.

Or, if you are a conspiracy theorist, you can posit political pressure and even intervention – even though there is no evidence of a ministerial direction.

Or it could have something to do with the judicial review just launched by the FDA trade union in respect of bullying and the ministerial code.

But the most likely explanation is that something has happened in the litigation process that has changed things.

In civil litigation such a shift can sometimes be explained by some sort of costs tactic – where one side springs an offer with such costs implications which, in the words of the noted jurist Don Vito Corleone, is an offer that the other side can’t refuse.

But such costs traps are (I understand) uncommon in employment tribunal cases where there is a special costs regime.

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So if not costs, then evidence.

At this stage of this sort of claim, there would be what is called a ‘disclosure’ exercise where the parties ascertain and share the relevant documentary and witness evidence.

It is the one moment when the parties get to see the actual strengths and weaknesses of their cases.

Other than in respect of costs traps, it is the one stage where claims are most likely to suddenly settle.

On this basis, the most plausible explanation for a claim that launched in April 2020 and was scheduled to be heard in September 2021 to settle in March 2021 is that some documentary or witness evidence has emerged – or has failed to come up to proof.

And given the nature of the claim and the amount at which the parties have settled, this development in respect of documentary or witness evidence would have to be in respect of a protected disclosure under the Public Interest Disclosure Act.

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So if this is a whistleblowing case, does that mean the settlement silences the whistle?

Here one answer is given by section 43J(1) of the Employment Rights Act 1996:

‘Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.’

A similar answer is given by the Cabinet Office Guidance on Settlement Agreements, Special Severance Payments on Termination of Employment and Confidentiality Clauses:

‘Staff who disclose information about matters such as wrongdoing or poor practice in their current or former workplace are protected under PIDA, subject to set conditions, which are given in the Employment Rights Act 1996. This means that confidentiality 4 Settlement Agreements – guidance for the Civil Service – 18-July- 2019 clauses cannot and should not prevent the proper disclosure of matters in the public interest.’

On this basis, it is unlikely that the settlement agreement will contain such a confidentiality clause or, if it purports to do so, whether it would be enforceable.

The whistle is not silenced – at least at law.

It may well be that Rutnam believes his internal disclosures were sufficient.

Or it may well be that there may be another appropriate opportunity for disclosure, perhaps related to the FDA judicial review case.

We do not know.

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But what we do know that the government has gone from this (as reported in the Guardian):

‘After a report in the Times highlighted tensions between Rutnam and Patel, sources close to Patel were quoted in several newspapers as saying that Rutnam should resign.

‘In an article in the Times, allies of the home secretary said he should be stripped of his pension, another source in the Telegraph said he was nicknamed Dr No for negative ideas, while one in the Sun likened him to Eeyore, the pessimistic donkey from Winnie the Pooh.

‘At that time the prime minister’s official spokesman said Johnson had full confidence in the home secretary and in the civil service, though the same guarantee was not given to Rutnam specifically.’

To this, in yesterday’s statement:

‘Joining the civil service in 1987, Sir Philip is a distinguished public servant. During this period he held some of the most senior positions in the civil service including as Permanent Secretary of the Department for Transport and the Home Office. The then Cabinet Secretary wrote to Sir Philip when he resigned. This letter recognises his devoted public service and excellent contribution; the commitment and dedication with which he approached his senior leadership roles; and the way in which his conduct upheld the values inherent in public service.’

And:

‘The government regrets the circumstances surrounding Sir Philip’s resignation.’

We can bet they do.

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So, on the basis of the above we can perhaps understand how and why the government has settled at such a high payment.

The amount is not only ‘substantial’ – it is extraordinary.

And it can be explained best by an understanding of the Green Book as applied to the effects of relevant employment and whistle-blowing law in this particular case.

But what is perhaps most notable in yesterday’s statement from the government is what it does not say.

In his resignation statement, Rutnam said:

‘In the last 10 days, I have been the target of a vicious and orchestrated briefing campaign.

‘It has been alleged that I have briefed the media against the home secretary.

‘This – along with many other claims – is completely false.

‘The home secretary categorically denied any involvement in this campaign to the Cabinet Office.

‘I regret I do not believe her.’

As well as several other serious accusations against the home secretary.

Not one of these accusations is withdrawn – not even ‘clarified’.

The home office instead now commends ‘his devoted public service and excellent contribution; the commitment and dedication with which he approached his senior leadership roles; and the way in which his conduct upheld the values inherent in public service’.

If any square has formed, it is now around Rutnam and not the Prittster.

*****

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Comments are welcome, but they are pre-moderated.

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How the power of the home secretary to deprive a person of their United Kingdom citizenship is creating a second class of United Kingdom citizens from immigrant families

3rd March 2021

Despite modern political discourse being dominated by demands of what the ‘state’ should and should not do, there is often little in practice that ministers can do towards their political objectives.

Laws may be passed that may or may not have wanted effects; revenues can be raised and resources allocated that may or may not have any desired impact; international agreements may be made – or broken – that may or may not have certain effects; speeches can be made, and lines spun.

But a good deal of this activity and inactivity is at least one step removed from ensuring any real social and economic change (or lack of change), for government and administration is not an exact science.

And for anything that actually affect the rights of individuals, there would then be the pesky courts with their activist judges and scoundrel lawyers.

Over the last decade, however, one government department realised there were things it could do.

The home office has hit upon the one area of policy where it can make decisions that have direct social and economic consequences, but in a largely law-free way.

The home office could take people’s citizenship and residency rights away.

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Certain manifestations of this general policy approach can be seen with the Windrush scandal and in the deportation of those with certain criminal convictions.

And so on.

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Just as important as these executive actions, of course, was the threat of such executive actions.

This was not an accident – it was the design of the policy.

That policy was the ‘hostile environment’.

As the former home secretary Theresa May said candidly in a 2012 interview:

“The aim is to create here in Britain a really hostile environment for illegal migration.”

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Billboards and signs on vans are one thing, but ready and easy use of executive powers are another.

And the home office – like any addict – began to use this legal power of international displacement more and more.

The home office could do things – and (more-or-less) get away with them.

The next step from stripping people of any residency rights they may have was to deprive them, when possible, of their citizenship rights.

From removing illegal immigrants, to removing those who were from immigrant families but were in the United Kingdom lawfully and indeed were citizens of the United Kingdom.

And so this is what they did.

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The outstanding Free Movement blog has compiled this table:

According to Colin Yeo, in this detailed and informative survey of the use of the power to deprive a United Kingdom citizen of their citizenship:

‘until quite recently, the power to deprive a person of their British citizenship on the grounds of behaviour was almost moribund, having been used against perhaps a handful of Russian spies…in practice, ‘deprivation powers were not used at all between 1973 and 2002’.

The cases mentioned by Yeo will show why many might not mind many of the deprivations – unpleasant individuals who have done highly unpleasant things.

Many would even clap and cheer and shout good riddance.

But each case is also an instance of simple executive power – a ministerial decision, rather than a prior judgment by a court or tribunal – that strips a person of their citizenship of the United Kingdom – even if that person was born a United Kingdom citizen.

Under section 40 of the British Nationality Act 1981 (as amended heavily over the years), the right of citizenship of a person is entirely at the satisfaction of the home secretary.

(See this blog’s post here.)

And once the home secretary is satisfied that you should lose your citizenship then the citizenship is lost, by instant operation of law.

The person affected may seek to appeal such a decision – but they do so from the position of no longer being a United Kingdom citizen.

The decision takes effect before – sometimes long before – it can be considered by any court or tribunal.

This is what raw executive power looks like.

And the home office likes it this way.

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Because of the international law in respect of ‘statelessness’ (which this blog set out here), this executive power is usually used (or should be used) only where the person affected already has the status at law of citizenship of another country.

This means it can be used against people with dual citizenship.

And this means it can be used most readily against those who are from first or second generation immigrant families.

So there are now two classes of United Kingdom citizen.

A first class of those who have no other nationality, and so against whom the home secretary cannot (or should not) use their power to deprive them of their citizenship of the United Kingdom.

And a second class of those who will also have another nationality and so can have their citizenship of the United Kingdom instantly removed at the satisfaction of the home secretary.

These second class citizens will primarily be comprised of those from first or second generation immigrant families.

This means, in turn, that many of those affected will tend to be those from black and minority ethnic backgrounds.

On this basis, the operation of this law and policy would be discriminatory against those from black and minority ethnic backgrounds.

The very structure of this law and policy would mean it cannot work any other way.

And so a citizen of the United Kingdom – born in the United Kingdom and with no personal relationship with any other country – can have their citizenship instantly removed by a government minister without any prior judicial step just because they are from an immigrant family.

And the home office likes it this way.

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This post is part of a series of posts on the Shamima 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)
  • statelessness and the law and the case of Shamima Begum (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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Each post takes time, effort, and opportunity cost.

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Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

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.

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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.

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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.’

*

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.

*

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).

*

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.

*

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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The issue with vaccine certification – or ‘vaccine passports’ – is not that they are discriminatory – as all certification is discriminatory, if you think about it

1st March 2021

Over at the Financial Times I have a piece today on ‘vaccine passports’ – that is, a system of certification that a person has or has not had the coronavirus vaccine.

That article demonstrates my weakness as a commentator in the traditional media sense, as on this subject I do not happen to have strong views either way.

I do not have an ‘angle’ that will (conveniently) last from between 800 to 1100 words – no ultimate position that I am arguing for and articulating on your behalf for your claps and cheers.

Instead, on this policy (as on many others) I can only see difficulties – and difficult choices.

And these difficulties are, in turn, because of the very nature of certification.

All certification is discriminatory – that is its very point.

Certification enables (or should enable) a state of affairs to be asserted in a manner that then allows a decision-maker to make one decision instead of another.

That is: to discriminate.

The problem is not with discrimination in and of itself.

The problem is when that discrimination is unfair – either directly or indirectly.

Accordingly, it is not a complete answer to the proposal of any form of certification to dismiss it as discriminatory.

For all you are then saying is that a system of certification is acting, well, as a system of certification should.

The more important questions are whether that a policy of certificates would be reliable – and, if reliable, whether the benefits will outweigh the costs and whether it will not create unwanted inequalities, either directly or indirectly.

These are problematic things to consider – and for which there may not be an easy solutions – and in respect of which difficult choices will need to be made.

And to point such things out is a purpose of law and policy commentary.

Not all commentary is cheerleading for one position or the other.

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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’.

*

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.

*

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.

*

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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If you value this free-to-read post, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

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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’.)

*

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).

*

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.’
 
 
*
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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‘Not giving the Home Secretary’s assessment the respect that it deserves’ – some initial thoughts on the Shamima Begum decision of the Supreme Court of the United Kingdom

26th February 2021

This morning the Supreme Court of the United Kingdom handed down its decision in the appeal case of Shamima Begum.

The judgment is detailed and lengthy, dealing with three distinct appeals, and is 137 paragraphs long.

With a decision of this scope and complexity one can only form indicative impressions on the day it is made public.

The decision will take time to digest and to comprehend.

But.

That said, and with the proviso that immediate impressions can often be dispelled, here are some views from the perspective of a liberal commentator on law and policy.

*

The first impression comes from the decision being unanimous.

This is not a judgment where some justices with a more liberal perspective have their say and their more conservative counterparts say something else.

A basis for a judgment was found to which all supreme court justices who heard the case was content to put their names.

This is similar to what happened in the second Miller case – on the prorogation of parliament – and on the Heathrow expansion case.

Perhaps it is a mere coincidence – but the supreme court is at now at least in the habit of putting on a united front in cases that (can be said to) involve issues of high policy and the public interest – even if it is not a deliberate policy.

This is no doubt sensible – if the judicial element of the state is to check and balance another element of the state (or to not check or balance another element of the state) then it is better for it not to be seen as something on which senior judges disagree between themselves.

It also perhaps indicates that there is more going on behind the scenes in seeking to obtain unanimous judgments, rather than a laissez-faire attitude of just publishing what each judge thinks.

*

The second impression is that, as well as being unanimous, the judgment is executive minded.

For example, here is how the court of appeal described the background of Begum:

But in contrast, in the supreme court judgment these same personal details – such as where Begum was born – are expressly presented from the perspective of the home secretary’s desk:

What we know about Begum in the supreme court judgment is expressly framed as being the content of a submission before the home secretary.

We are not directly told Begum was born in the United Kingdom other than that this is an incidental detail in an assessment on national security.

For the details of the individual to be put in such terms in a judgment in respect of their rights is not wrong, but it is quite the tell.

The supreme court judgment also starts in a robust, no-nonsense way about the home secretary’s decisive action:

Nothing rides on it, of course, but note how we are told that the home secretary is both a privy councillor and a member of parliament (gosh, fancy that) and nothing at all about Begum.

That the court is seeing things from the home secretary’s perspective is also perhaps indicated by an unfortunate choice of words at paragraph 134:

The court of appeal has been told off by the unanimous supreme court for not giving ‘the Home Secretary’s assessment the respect which it should have received’.

It is not only an unfortunate choice of words, it is also somewhat chilling in a court which is in effect the final guarantor of our basic rights and freedoms either under the common law, human rights law, or otherwise.

The job of the courts is not to ‘give respect’ to assessments of the home secretary – but to approach such determinations with anxious scrutiny.

Perhaps the use of words here is a slip – but one fears instead it is again a tell.

*

The third immediate impression is that it is a defeatist judgment.

The court of appeal found a compromise which balanced the rights of Begum with those of the executive.

It was an impressive and elegant judgment, and I did a video for the Financial Times:

The supreme court was to have none of this.

For the supreme court justices it is not the job of a court to indulge in such elaborate balancing exercises between the executive and the individual.

Instead, in such a dilemma, there is no judicial compromise:

Not every legal problem, it seems, has a neat legal solution – and the supreme court is averring that courts should not affect otherwise.

*

The overall first impression is that the supreme court has made a firm turn away from liberalism – liberalism being the general notion that the rights of the individual are to be balanced against those of the state.

(As opposed to the notion that the rights of either side will always trump the other.)

If this first impression is affirmed on careful examination of the judgment then the considered reaction will have to be one of disappointment.

For if the supreme court is taking an illiberal turn, then they will be failing – to invoke a phrase – to accord individuals the respect they deserve.

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Why it was correct for an appeal court to allow a memorial entirely in Irish

25th February 2021

Not all law is secular.

And so one of the happy features of being a legal commentator in England is coming across cases involving church law – an entire parallel system of law and indeed jurisdiction.

It is like stepping from time to time through a portal into another world of courts and rules and judges, vaguely familiar but also radically different.

*

One such case was heard yesterday – a fascinating appeal that has significance beyond the boundaries of any church and churchyard.

For bringing this appeal to wider attention we can thank the tweets of CJ McKinney, who live-tweeted the hearing (that was broadcast on Zoom).

His thread is here:

https://twitter.com/mckinneytweets/status/1364522509278851080

*

The appeal was about what will be inscribed on the gravestone of the late Margaret Keane.

In particular, it is about the proposal of the daughter of the deceased that the gravestone should bear the words ‘In ár gcroíthe go deo’  – that is, in Irish.

This phrase can be translated into English as ‘in our hearts forever’.

For as the court at first instance described:

‘Margaret Keane and her husband were both born in the Irish Republic but had made their life in the United Kingdom. They remained proud of their Irish heritage and were active in the work of the Gaelic Athletic Association both in Coventry and nationally. This was important public service to the Irish community in the United Kingdom and formed a major part of Mrs. Keane’s life and of her work for others.’

However, the Coventry Churchyard Regulations said ‘no’:

‘It is to be remembered that the memorial will be read not just by those who knew the deceased in question but by those who did not. Indeed, the message conveyed to those who did not know the deceased is in many ways more important than the message being given to those who did know him or her. It is for this reason that inscriptions in a language other than English may not be authorised by an incumbent.’

But this is not an absolute prohibition.

The nature of these regulations appears to be to set out what an incumbent vicar can agree to without referring it to the chancellor of the diocese.

The regulations thereby also provide:

‘Any application for an inscription wholly or in part in a language other than English should be referred to the Chancellor through the Registry. The Chancellor will in such cases normally require an application to be made for a faculty.’

*

And so a faculty – or permission – was applied for, and a decision on the application was made by the chancellor of the diocese sitting in a consistory court.

The judgment of that chancellor is here.

And it is an extraordinary piece of legal reasoning.

The most relevant passage of the judgment for the appeal was as follows (which I have broken into smaller paragraphs for flow):

‘The proposal in this case is not just for the inclusion of a single word but for a short phrase which the reader will immediately realise is conveying a message.

‘However, it is a message which will be unintelligible to all but a small minority of readers.

‘In those circumstances it is not appropriate for it to stand alone without translation.

‘I make it clear that in saying this I am not in any sense adjudicating on the relative merits or standing of English and Irish Gaelic as languages.  The situation would be likely to be wholly different if I were having to make a decision as to a memorial in the Irish Republic. However, the situation which I have to address is of a memorial in English-speaking Coventry.

‘Should I permit an inscription which will be incomprehensible to almost all its readers?

‘Not only would the message of the inscription not be understood but there is a risk of it being misunderstood.

‘Given the passions and feelings connected with the use of Irish Gaelic there is a sad risk that the phrase would be regarded as some form of slogan or that its inclusion without translation would of itself be seen as a political statement.

‘That is not appropriate and it follows that the phrase “In ár gcroíthe go deo” must be accompanied by a translation which can be in a smaller font size.’

*

Wow.

What can one say?

Well, first that there is a substantial Irish population in Coventry – as in the rest of the west midlands.

Second that gravestones and memorials in Anglican churches and churchyards are often not in English: lector, si monumentum requiris, circumspice.

But most jarring is the assumption that anything written in a language other than English – especially Irish – risks being seen as a ‘slogan’.

The chancellor asserts ‘there is a sad risk that the phrase would be regarded as some form of slogan or that its inclusion without translation would of itself be seen as a political statement’ .

But in fact there is a sad certainty that such sloppy and prejudiced reasoning by somebody who should know better will be seen as some form of idiocy and would of itself be seen as a political statement.

It is a remarkable and discrediting passage, and it was right it was appealed.

However, it must be noted that the chancellor did not prohibit the use of the Irish phrase  – but ordered that it must be complemented on the memorial by a translation.

And so the case is not about whether Irish could be used on a memorial, but whether it was open to the deceased’s family to have an all-Irish memorial.

*

And now we go to the wonderfully named ‘Court of Arches‘ – like something out of a story by George R R Martin – which appears to have appellate jurisdiction in such a case.

Here kudos should be conferred on the solicitors Irwin Mitchell and the barristers Caoilfhionn Gallagher QC and (the former legal blogger) Mary-Rachel McCabe who acted pro bono publico.

(Pro bono publico means ‘for the public good’ – which I translate for the benefit of the chancellor of the diocese of Coventry.)

The hearing was not contested by the local church – nobody was sent from Coventry to the court of arches to defend or justify the chancellor’s judgment.

The hearing comprised representations from the daughter as the petitioner, and from the Irish language group Conradh na Gaeilge as an intervenor.

The court also appointed an independent lawyer as amicus curae (which I translate as a friend to the court, for the benefit of the chancellor of the Coventry diocese).

Delightfully the hearing had to finish in time for a church service to take place:

https://twitter.com/mckinneytweets/status/1364628328490164228

From McKinney’s tweets, it appears that the decision was attacked on a number of grounds including (as befitting a west midlands case) Wednesbury unreasonableness as well as on the basis of human rights law.

We do not yet know which of these submissions gained the most traction for the judges beneath the arches.

But we do know that the appeal was allowed – and so a memorial can be made out entirely in Irish.

https://twitter.com/mckinneytweets/status/1364631710802079745

I also understand that court costs of the amount of around £2,000 have been reimbursed to the daughter – and there must be a question about charging for such costs in these cases.

*

But, this being the church of England there seems an attempt was also made to humour the chancellor – and so a translation can be available on request:

https://twitter.com/mckinneytweets/status/1364632302085677069

The whole point of the church of England, of course, is to find – if possible – such a middle way.

Or via media – for those other than the chancellor of the dicocese of Coventry.

But nonetheless this was a sensible and welcome appeal judgment.

*

The wider import of this case is not about whether a church can control what is said on a memorial on church grounds.

Indeed, as it was a church court that decided the issue, this matter has been kept within the structure of church law, and thereby within the church.

This was not an example of the secular courts overturning a decision of the church – but a decision by the church itself, but at a higher level.

Nor is the significance of the case about what incumbent priests should be able to routinely allow – there is nothing inherently wrong with a general policy, as long as exceptions are considered appropriately.

The significance of this case is, for me, about the sort of reasoning and grounds that can be relied upon when denying outright the possibility of a memorial entirely in a language of the deceased and of the deceased’s family and community.

Such a decision should never be based on the prejudiced generalisations put forward by the chancellor in this particular case, and we must hope that in the awaited written judgment of the court of arches that the appeal judges says this – emphatically.

There must always be the possibility in principle of a memorial entirely in an appropriate language, subject to circumstances.

*

Thank you to the family of Margaret Keane and the lawyers who brought and won this appeal.

In ár gcroíthe go deo

And if you want to look a monument to their efforts, you will be able to go to Coventry for a look.

Lector, si monumentum requiris, circumspice

***

POSTSCRIPT

Since I wrote the post above, I have now seen this brilliant post by Caoilfhionn Gallagher the QC who led the appeal.

A superb piece of legal blogging.

 

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