The Brexit compact: the EU does not mind the UK getting the credit, as long as the EU gets what it wants

15th October 2021

There is a lovely quote from Ronald Reagan:

‘On my desk in the Oval Office, I have a little sign that says: There is no limit to what a man can do or where he can go if he doesn’t mind who gets the credit.”‘

(Source)

And this describes more-or-less where we are now with Brexit.

The European Union does not care what the political and media supporters of the United Kingdom say or do.

But it knows the United Kingdom government cares desperately what its political and media supporters say or do.

So we are now in the situation where there is a convenient compact.

The European Union decides what will happen at each stage of Brexit so as to protect its interests and those of member states, especially Ireland.

Speedy Article 50 notification without prior negotiation; sequencing; the joint declaration; the financial settlement; the exit agreement; the trade and cooperation agreement; the Northern Irish protocol proposals, et cetera.

And in turn, the United Kingdom can call each stage a triumph for its hard bargaining, and so get the domestic coverage it craves.

Everyone is a winner.

(Or they think they are.)

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Understanding the secrecy of the United Kingdom over its proposals for the Northern Irish protocol

14th October 2021

We are told that the United Kingdom government has provided its proposals to the European Union for changes to the Northern Irish Protocol.

We can assume this to be true – else the European Union would say that they have not received such proposals.

(It is sad we cannot trust the word of the government on this without express or implicit corroboration.)

But these proposals do not appear to have been made public.

This cannot be explained by the usual ‘cards close to the chest’ excuse – as the European Union know what those proposals say.

So there must be another reason.

And the only possible reason appears to be is that the United Kingdom government does not want the people of the United Kingdom – or the press of the United Kingdom – to know what is in those proposals.

Just think about this.

Brexit was supposed to be about the United Kingdom people ‘taking back control’ from the European Union.

But now the United Kingdom government is allowing the European Union to be privy to proposals on what happens with one part of the United Kingdom – and not the people who live and work there.

It is an extraordinary situation, if you think about it.

This is the reality of ‘taking back control’.

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A hard look at the latest Brexit speech of Lord Frost

13th October 2021

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

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

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

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

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

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

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

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

Burke was Irish.

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

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

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

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

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

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

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

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

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

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

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

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

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

There is no substance, for all the paraded erudition.

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

And, somehow, both are losing.

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

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

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

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

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

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

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

For example, take the issue of policy.

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

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

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

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

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

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

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

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

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

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

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

And so he is wrong-footed again.

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

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

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

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

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

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

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

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

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So, yes.

Frost’s speech has historical and probative value.

But it is not an impressive piece of work.

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

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

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

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

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

And who made this compelling counterpoint so eloquently?

Edmund Burke.

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

12th October 2021

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

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

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

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

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

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

But I fear it is not entirely correct.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*

But.

I think @SpinningHugo makes two errors.

*

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

There are breaches, and there are breaches.

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

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

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

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

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

Even the United Kingdom.

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

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

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

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

(a) that were freely entered into,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Brexit Policy of Admiral Boom

11th October 2021

You will remember from Mary Poppins the character of Admiral Boom.

In the first Poppins book of 1934 the admiral is introduced early, almost as the first absurd or magical element of the story:

‘…Mr Banks popped his head out of the window and looked down the Lane to Admiral Boom’s house at the corner.

‘This was the grandest house in the Lane, and the Lane was very proud of it because it was built exactly like a ship.

‘There was a flagstaff in the garden, and on the roof was a gilt weathercock shaped like a telescope.’

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Given the problems of the United Kingdom government in procuring a post-Brexit trade flagship, perhaps building one in a garden, with a flagstaff, is not as absurd or magical in 2021 as it would have been to readers in 1934.

But in the book there is no time gun.

The cannon was devised for the 1964 film:

And as you will remember, the firing of the cannon is regular and loud and a cause of few moments’ inconvenience.

But ultimately the cannon fire is inconsequential: the vases and the pictures are put back as before, and the characters carry on as before.

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Admiral Boom is now, it seems, in charge of Brexit policy.

On a regular basis – usually at the weekend for the excitement of the Sunday press – there is an explosion.

Article 16 of the Northern Irish protocol will be triggered, or something.

There is then a sudden flurry of a frenzy, but soon the political actors carry on as before.

This is not to say that Article 16 will not get triggered – the United Kingdom government has done stranger things during Brexit.

And it is not to say that – under cover of Article 16 – a deal could not be done by the European Union and the United Kingdom – for realpolitik can take many forms.

But it is to say these regular threats of triggering Article 16 are being regarded as only as loud and momentarily inconvenient as the firing of Admiral Boom’s cannon.

Either Article 16 should be triggered or it should not be, but the performative politics of regularly threatening to do so should be avoided.

Article 16 is intended for urgent situations – but this long run up indicates a lack of urgency.

(And Article 16 does not say what those currently wanting to trigger it thinks it says, as this blog has previously averred.)

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The current Brexit minister David Frost – who is the one usually saying that Article 16 will be triggered – is not in a credible position.

Here are his tweets from when the agreement was signed.

‘excellent deal with the EU’

‘the jurisdiction of the European Court of Justice ends’

‘a fully independent country once again’

The current news is that Frost is citing the (very limited) role of the European Court of Justice in the protocol as the basis for ‘a significant change’.

 

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So we have the preposterous negotiation of Frost against Frost.

The Frost of 2020 who not only trumpeted the Brexit deal in general but that it ended the role of European Court of Justice in particular against the Frost of 2021 who now says the role of that court is fundamentally important.

And somehow in this negotiation both Frosts are losing.

Both were/are wrong.

The Frost of 2020 did not want to admit the small continuing role of the European Court of Justice.

The Frost of 2021 does not want to admit that the small continuing role of the European Court of Justice is of almost no practical importance.

The European Court of Justice is a sham issue – it is a contrived, bad faith attempt to find something – anything – to open up the protocol.

As an exercise in misdirection, it is up there with the Chewbacca defense:

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The current politics of the United Kingdom have a surreal quality – where things are better illustrated by references to Mary Poppins and South Park than by citing precedents from political history.

We have a Brexit agreement negotiated and celebrated as ‘excellent’ by the same minister who now says it is so flawed that it needs to be re-negotiated.

Like the (literally) ship-shape house introduced at the beginning of Mary Poppins, what should seem very odd has very soon become very normal.

Yet, as the attorney in South Park avers in another context, ‘it does not make sense.’

And the key to understanding so much of current law and policy of United Kingdom is that it does not make sense, but it is happening anyway.

Brace, brace.

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Hard questions for liberal sensibilities – the play White Noise and its implications

10th October 2021

*Spoiler warning for the play White Noise*

In the play White Noise – currently showing at the Bridge Theatre in London – there is what the programme calls ‘an extreme proposition’.

This blogpost is about that ‘extreme proposition’ – and please only read on if you have seen the play or do not mind the key plot point being spoiled.

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*Spoiler warning for the play White Noise*

*

In the play, set in America, the black male character, an artist, proposes to sell himself into temporary slavery to the white male character, a (supposedly) liberal professor.

The play then shows how that transaction affects all involved.

For the liberal professor, for example, slave ownership seems to come naturally, and he swiftly adapts to exercising the ‘rights’ of a slave owner.

Indeed, all four characters swiftly – and convincingly – adapt.

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Watching this play unfold prompted a number of thoughts and recollections.

One was this recent tweet:

https://twitter.com/TweetsByBilal/status/1445681197317689351

The second was reading about the (in)famous Stanford prison experiments and the Milgram experiment where it it appears a number of individuals also adapted quickly to behaviours that were cruel.

The third was an insightful comment by the philosopher Richard Rorty about Nineteen Eighty-four: that the last third of the book makes sense if you see it as not about Winston Smith, but about O’Brien – from the perspective of the torturer, not the tortured.

The fourth was a comment I once heard attributed to another philosopher, Isaiah Berlin, that the most difficult question to put to many British people was whether they would have collaborated with a Nazi occupation.

The fifth was to the valuable work of David Olusoga and others in highlighting how prevalent and routine slave ownership was in the United Kingdom until the 1830s:

And the last thought was about my recent posts on slavery and the lawyers – about how lawyers and other professionals and business people casually provided the infrastructure for the slave trade and widespread slave ownership:

https://twitter.com/davidallengreen/status/1271696745836228608

https://twitter.com/davidallengreen/status/1272069550746546176

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What the play shows is the ease with which notions of slave ownership – and attendant cruelty – can be revived in a contemporary setting.

One of the other characters – a white lawyer – does not prevent this transaction – and indeed her law firm provides a deed of transaction for the parties to sign.

Whether such a transaction would be void under the United States constitution or by reason of public policy is not tested.

For the parties, it is enough that the deed does provide for legal rights and obligations.

The solemn formal legal document says a thing, and so the parties regulate their conduct accordingly.

And, far from the transaction being voided by the law, the play suggests that the police are more respectful of the ‘slave’ – for he is now the property of a white person, and so under his protection.

The law adapts, the law recognises, the law provides.

And so one of the many disturbing points about this extraordinary play is – in addition to the effects on the characters – is the plausibility about how the law – both in terms of the law of property and policing – would let this happen.

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Back in August this blog had a post setting out other areas where the law and lawyers facilitated and facilitate a range of horrible situations.

We are always only a step or two away from the law being there to enable cruelty – indeed, there are many areas of human activity from interrogation and prisons to the treatment of animals – where dreadful things happen out of sight and out of mind, with the full protection of law.

Civil liberties and human rights and humane treatment are all fragile standards.

It is not only ‘other’ people who will clap and cheer at humans being systemically inhumane.

It is not only ‘other’ people who will just carry on with a shrug and without a care at humans being systemically inhumane.

For most of us it will only be noise.

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What if…there had not been a Brexit referendum in 2016?

9th October 2021

Currently on Disney+ is a series of animated programmes exploring what would happen if some point or other was changed in the Marvel Cinematic Universe.

Of course: when the source material is itself fantasy, the point of speculating about the effects of any changes can only be of limited import – just one fiction instead of another fiction.

With the real world, on the other hand, such counterfactuals at least start with what are understood to be facts.

And so: what if there had not been a referendum in 2016?

Presumably the Conservative government elected in 2015 would have stayed in office until 2020.

And presumably the Greek debt crisis and the migration crisis would have been unaffected.

Politically, however, there is no reason to believe that the rise in Ukip support would have abated.

And so all may have happened is that there would have been substantial Ukip gains in the 2020 general election – especially if the Conservatives were seen to have reneged on their manifesto commitment of holding a referendum.

If so, there might have just been a referendum in 2021 instead.

An alternative counterfactual is if the Conservatives had not promised a referendum in 2015 – but similarly that would have meant Ukip gains at that general election instead, with a referendum to follow.

The hard political truth may be that, by 2015 and the Ukip gains, a referendum on European Union membership was likely to take place.

Less obvious, however, is how events would have unfolded had Remain won the referendum – or if, in 2019, the parliamentary stalemate had been broken by a government of national unity proposing a further referendum that Remain could have won.

These – 2016 and 2019 – were the two political moments that Remain could have ‘won’ – not be refusing a referendum, but by winning that (or a further) referendum instead.

It was not so much that Leave won the referendum but that Remain lost (and then, in 2019, lost again).

And that did not need to happen.

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Changing my mind about animal rights

8th October 2021

Once I did not think animals should have rights.

To the extent I had any view on the subject, my view was that ‘animals don’t have rights, but humans have responsibilities’.

After all: how could an animal have rights if an animal could not enforce them?

But.

The more I thought about it, the more that view just did not add up.

Lots of humans have rights that have to be enforced on their behalf – minors and the incapacitated, for example.

Even things that do not actually exist in physical form have rights and legal personality – corporations for example.

And so the fact that animals could not enforce their own rights was not a reason to deny them rights.

Then, as I looked at animal welfare law in the United Kingdom – a complex sprawling mess of legislation with arbitrary distinctions between species and various levels of protection (and lack of protection), and with varying degrees of enforcement (and lack of enforcement), it seemed to me that it would be far better if the whole thing was replaced with a single Animals Act (like the Children Act).

And if so, then the basis of the legislation should be that all animals have rights – not just the lucky ones.

Not necessarily absolute rights – but then again few human rights are absolute.

But that regard would have to be had to these rights by government and the courts.

And so, with with this change-of-mind, I wrote a column in this month’s Prospect – go and read it here.

Please let me have any comments below – and I will respond when I can.

Understanding the hostility to the Human Rights Act – and why this matters

7th October 2021

This week the lord chancellor and justice secretary – in 2021 – had to resort to a 2009 case – where the law had already changed in 2014 – to support his demand for an ‘overhaul’ of the Human Rights Act 1998.

That was telling.

Those opposed to the Act often seem to find it difficult to find topical examples of cases to substantiate their disdain.

Some resort to blaming cats (and I am not making this up).

And so, if it is not the actual substance of cases under the Act that explains the antipathy to the legislation, what is the explanation?

What are the actual reasons why the Human Rights Act 1998 is so hated?

I think there are four reasons.

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The first reason is its very title and its express mention of ‘human rights’.

For many this title seems alien – and provocative.

It is as if ‘human rights concerns’ are something you tell off foreigners about, rather than it being something that is of any domestic relevance.

The view seems to be that there is no need for ‘human rights’ in regard of the United Kingdom – for we have liberties.

This is, of course, misconceived – both in theory and practice.

In theory – because we have an executive under little or no day-to-day scrutiny, where state officials have unlimited power, and where the legislature has absolute power to make or unmake any law.

And in practice – taking torture, for example, there are documented examples of torture and inhuman treatment by United Kingdom agents in Northern Ireland, Afghanistan, Kenya, and elsewhere.

But we pretend that the United Kingdom is not like that – that we are always the good guys.

Yet the United Kingdom and its agents are as capable – both in theory and practice – of human rights abuses as in any other state.

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The second reason is that the rights that the are given effect by the Human Rights Act are (seen as) ‘European’.

This is a similar sentiment to the hostility to the European Union that contributed to Brexit.

And it is the ‘E’ word that seems to make all the difference.

The United Kingdom has human rights obligations under various United Nations instruments, and few know and fewer care.

We are also subject to fundamental obligations as members of international organisations such as NATO and the World Trade Organisation.

And those who jeer at the ‘E’ word will somehow be horrified at suggestions that the United Kingdom renege on its obligations under NATO and the World Trade Organisation, even if they limit our autonomy in defence and trade matters respectively.

The European Convention on Human Rights (ECHR), however, could not – for some – be more provocatively named.

Had it been called, say, the British convention – and many treaties are named after places – or the Winston Churchill convention, after one of the politicians who supported it – then, at a stroke, the regime would be less contentious.

That the the rights are seen as ‘European’ is, of course, a misconception.

The ECHR instead was formulated in part by British lawyers seeking to codify for post-war European what they perceived to be rights existing in our domestic law.

Had it been called the British convention or the Winston Churchill convention, it would not have been that misleading, given the United Kingdom’s contribution.

But instead the ECHR provisions – and thereby the Human Rights Act – are European.

‘Ugh.’

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The third reason is that the Human Rights provides rights for humans, including the humans many do not like.

The rights are not only for nice people but also for the Other: the people who are so bad or undesirable that many believe that they should be treated inhumanely.

For example: foreign criminals, domestic criminals, asylum seekers, and so on.

Why should these people have rights?

The sentiment is that such people should not have rights, because they don’t deserve them, or that they have forfeited them.

But that is the nature of human rights: you have them because you are a human.

But if the Other use their rights, then that ‘use’ is instantly converted to ‘abuse’.

You may ‘use’ your rights, but they – they ‘abuse’ their rights.

The notion is that those facing the coercive powers of the state – say incarceration or being separated from their families – should smile and nod along with that coercion, and certainly should not interrupt clapping and cheering those being coercive.

But it those who are facing the coercion of the state, especially those where there is no public sympathy, who are most in need of human rights.

If you think about it.

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The fourth reason is about the failure of the Human Rights Act to get ‘buy-in’ from certain media and political groups since its enactment.

Here there is a contrast with, for example, the United States – say if a citizen did not like a particular right in the Bill of Rights (for example, the right to bear arms), that citizen would be unlikely to be in favour of repealing the entire Bill of Rights.

But in the United Kingdom there are many who do not see that the rights in the Human Rights Act protect them as well as the Other.

And part of this is – in my view – the fault of the courts themselves.

After the Act took effect, the courts moved rapidly to ‘develop’ (that is, invent) a new tort of privacy.

A right that was enforced in cases against the media.

But the corresponding right of free expression enjoyed no similar ‘development’ – and over twenty years later, it is difficult to cite a case where the right to free expression has made a difference, let alone led to the ‘development’ of the law.

No United Kingdom journalist, unlike their American counterparts, would ever think to assert loudly and proudly their legal right under Article 10 to free expression.

Had the British courts made Article 10 (free expression) as meaningful as Article 8 (privacy) then the British press would be as horrified at the prospect of repeal of the Human Rights Act as the American media would be at the repeal of the entire Bill of Rights, including the right to a free press.

The populist media of the United Kingdom are not aware that the ECHR and the Human Rights Act protects (or should protect) them as well as the subjects of their coverage.

If the Article 10 right of free expression had been taken half-as-seriously by British judges as the Article 8 right to privacy, one suspects no politician would dare suggest ‘overhauling’ the Human Rights Act as a whole, let alone its repeal.

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As this blog recently averred, at the heart of the issue of the Human Rights Act is symbolism, not substance, and for both ‘sides’.

The Act does not actually do a great deal, but it does enough to make a difference in certain situations.

But the main reason for its repeal (or ‘overhaul’) seems to be the sheer symbolic value in doing so, and the main reason to oppose such moves is the equal-and-opposite sheer symbolic value in preventing those moves.

And so the Act is caught up in political and media battles that have little or no connection to the Act’s actual legal significance.

It is almost as if the Human Rights Act in the political and media imagination has an autonomous existence, distinct from the actual legislation and what that legislation does.

But.

There is a problem here.

A real problem, which sensible liberals should not ignore.

Some legislation – for example, equalities law – can start off controversial but will become less controversial as the years go by.

Laws such as the Race Relations Act were – believe it or not – controversial at the time.

The Human Rights Act – twenty-one years after it took effect  – remains controversial and – in good part – unloved.

It has not simply become embedded as part of the political consensus.

And that is a failure.

A failure that cannot be wished away.

So there is a question for all sensible people, who support human rights in general and the ECHR in particular: are there better ways of protecting these substantive rights than by the Human Rights Act?

For it is those substantive rights, and their availability to those who need to use those rights, that are the important things, and not their legal form.

The Human Rights Act 1998 is still not a popular piece of legislation in 2021, and unless those who value human rights think constructively about other ways of enforcing those same rights, there will be a risk that the Act and the rights it provides for will all topple together.

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

6th October 2021

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

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

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

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

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

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

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

(Which is fair enough.)

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

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

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

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

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

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

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But.

Neither of these two propositions are correct.

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

That is, all foreign criminals.

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

This would apply to the 2009 case.

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

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

This also would apply to the 2009 case.

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

But even those deportations are subject to exceptions.

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

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

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

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

So there are either two explanations.

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

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

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

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

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Each post takes time, effort, and opportunity cost.

Suggested donation of £1 upwards for each useful post, or of £5 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

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