All posts by Conor Gearty

I am Professor of Human Rights Law at LSE, and a Member of Matrix Chambers where I practice law as a barrister.
Misc

The Government’s Plans for Human Rights

The consultation on the Human Rights Act

 

The Conservative Government in general and the Secretary of State for Justice Dominic Raab in particular have a problem with human rights.  It is one of their own making and from which the convoluted consultation paper published on Tuesday is an effort to escape – but it is very unlikely to succeed.

On the one hand the UK government preaches human rights around the world, insisting that various countries of whose conduct they disapprove adhere to them, with Liz Truss playing the role of a latter-day Lord Palmerston, just as Mr Raab did when he was Foreign Secretary.   We cannot pause here to reflect on the absurdity of this mid-ranking, rather friendless country barking instructions at the likes of China and Russia because we must move briskly on to an even greater silliness – the fact that in the Tory vision of the world the only people who can’t have human rights are the British.

This bizarre position is a legacy of the Brexit wars. In the early pre-Brexit days, the Eurosceptics (as they were then called) made a fuss about the European Convention on Human Rights and the European Court of Human Rights in Strasbourg because they were a useful proxy target in the war against the real Europe, the entirely different EU. That war is now won (ho! ho!) but the proxy war against the European Convention’s domestic incarnation the Human Rights Act continues on a kind of auto-pilot, with no one knowing quite how to stop it.

The brave thing for Mr Raab and his colleagues to do would be to repeal the Human Rights Act entirely and without replacing it, at the same time withdrawing from the Council of Europe and so ditch the European Convention on Human Rights and the authority of the European Court of Human Rights altogether, truly taking back control. Theresa May actually suggested this before the Referendum in 2016, but it is proving too much for even these most red-blooded of Brexiteers.  It would be brave but suicidally bonkers, leaving the UK alone with Belarus outside the Council’s large tent (in which Russia and Turkey are among the 47 states to be found) and thus debilitating sad Brexit Britain’s diplomatic reach even more. It would also incur the wrath of the Americans (what about Northern Ireland’s Good Friday Agreement!) and the EU (to which human rights promises were made during the withdrawal process).

The result of this sensible failure of nerve is a dogs-dinner of a proposal full of grand but fairly empty gestures to please the anti-Europeans and imperial nostalgists who run the country these days, with a few bullying attacks on the weak and vulnerable thrown in just to show off how tough, how hard our leaders truly are.

The gestures first. It is to be a British bill of rights but with the same content as that never-to-be-mentioned Voldemort of documents the European Convention. There will be ‘some mention’ of responsibilities. Britishy things will be added (a qualified (shame!) right to a jury; er is that it?) and the Strasbourg court can be ignored by the UK courts (it can be already) while other countries courts can be referred to in judgments (ditto).  The power to twist things to fit with rights will be modified but probably not removed so the twisting will need to be a bit more carefully done.  The Daily Mail sort of gets its wish to have privacy removed so they can start ruining people’s lives again now Paul Dacre is back in charge but then again maybe it will survive – the government doesn’t plan to remove privacy altogether and anyway it is now weaved into the common law which of course they love so much.

That is it, pretty much. The controls placed by the present Act on public authorities are broadly fine as is the current system of unenforceable declarations of incompatibility which are occasional made against statutes. The institutional restraint shown by the courts is also good (and Lord Reed’s Supreme Court has certainly been making things easy on that score, with yet another decision reining itself in handed down the day after the Consultation Paper was published.  Of course you will find lots wrong with any statute if you resource an independent team to write a 580 page critique of it, as the government did as a prelude to this consultation. Most of the critique in that worthy and dense report belongs at the dreary end of law reform, not the front pages of the right-wing press, however Mr Raab talks his plans up.

In truth the government is hemmed in by facts. Northern Ireland requires the Convention and no end of knit-picking about the difference between that document and the case-law in Strasbourg can get away from this capital fact.  The Convention is likewise baked into the devolution settlements of Scotland and Wales and pulling it and/or its Strasbourg cases out of these frameworks against the wishes of the locals is likely to generate a series of chaotic constitutional wars.   Not following Strasbourg while keeping access to that court open merely returns us to the 1980s and 1990s – constant ill-tempered complaints from the UK about Strasbourg cases to which they invariably acquiesce in the end. The spies at GCHQ noticed this and forced Mr Raab to keep the extra-territoriality of the current law in his new Bill, depriving him of a headline-grabbing ‘the military can infringe human rights abroad’ boast, but thereby avoiding the exposure of our spies and soldiers to public scrutiny in Strasbourg when our courts here in the UK have been proving themselves so very accommodating about secret hearings and secret witnesses and so on.

The bullying is clearer than the grandstanding, aimed at a predictable array of vulnerable people for whom tough lives will be made even tougher. This includes the usual asylum seekers and foreigners fighting deportation but also – bizarrely – children whom the State has been trying to protect from their parents and those (usually baddies the government claims) whom human rights law insists should be told when their lives are at risk.  ‘Enough of this human rights nonsense’ might not be a sufficient answer if a campaign against whatever emerges from the consultation gathers momentum. The Labour leader Keir Starmer is mentioned a number of times in his previous capacity as a human rights expert, and there are odd little anti-wokish sentences now and again which are clearly intended to incite. Labour should relish the fight.   This is one they can win.

 

16 December 2021

Misc, The Tablet

Mr Johnson’s calamitous premiership

[This article appears in the Christmas edition of that wonderful Catholic weekly The Tablet: do consider checking the magazine out and subscribing if you like what you see]

-Do these names ring any bells: Tim Yeo, Allan Stewart, Hartley Booth, David Trevinnick, Graham Riddick, Tim Smith, Patrick Nicholls? They were just some of the bit-part players in the great Tory sleaze crisis of the mid 1990s, widely believed to have combined with economic mismanagement to guarantee the Party’s huge defeat in 1997.  The big beasts in that Conservative calamity – whose names you are more likely to remember – included Cecil Parkinson, David Mellor, Norman Lamont, and this is before we even get to those who were forced out of office for stupid words rather than suspect deeds, amongst them Edwina Currie (salmonella rife in eggs) and Nicholas Ridley (can’t stand the Germans). Every day seemed to bring a new story of infamy in high office. 

It might be thought that little has changed since this last time the Conservatives enjoyed a similarly lengthy period in office.  Owen Paterson is today’s Neil Hamilton, protesting his innocence while he pockets cash, not for questions this time but for influence. Matt Hancock kisses his girlfriend in the way that Piers Merchant kissed his wife in a gruesome public display of fidelity shortly after news of the affair that was to end his career had broken. Boris Johnson is, however, no John Major. The current prime minister is himself an epitome of the moral emptiness that in that earlier era brought men down.  And yet he remains in post.  Here is surely a material break with the past. Wrong produces sniggering not the sack, contriteness merely simulated while the next ruse is pondered.  

The impunity feels real this time.  Public culture seems genuinely to have changed, with the prime minister the beneficiary of a now prevailing public taste in which celebrity is everything and immoral behaviour counts for nothing. News rushes at such high speed that little holds the imagination for longer than a nano-second. What matters are not the details any more but rather the overall narrative – and so far as Johnson is concerned that has up to just very recently proved remarkably durable; he has remained that lively bloke from the telly who is really one of us, cheating and lying like the rest of us, as he knows, and (crucially) as he also knows that we know. 

At his best, it is that disbelieving twinkle in his eye as he utters the latest ludicrous promise (forty new hospitals! a tunnel to Northern Ireland!) or lie (no trade barriers whatsoever!), that detachment from himself as he plays the role of leader for the cameras, that has consolidated his grip on enough of the electorate for him to count as highly successful.  It helps too to have policies that work for closet and explicit racists, the rich who fund his Party, and the foreign media bosses who propagandise for him in their newspapers. Johnson has never taken a brave political decision in his life.  Whether it is to a wife, a girlfriend, a political associate or the public, Johnson lies to please – with the goal of pleasing himself.

But is the spell still working? Boris Johnson’s grip on office is clearly loosening by the day and if he is gone or nearly gone by the New Year it will have been a combination of Tory mistrust and establishment retaliation that will have seen him off, albeit both will still need to be propelled by a collapse in public esteem which at the time of writing has not – yet – holed the Prime Minister below his political waterline. 

Tory mistrust is easy to understand; by all accounts Mr Johnson’s only claim to their loyalty has been his capacity to win their elections for them.  His lack of any deep relationships rooted in mutual loyalty is becoming an increasingly evident weakness, and very different from John Major who attracted (and retained) intense personal loyalty.  For its part, the ‘establishment’ currently ensnaring Johnson is surprisingly new, a creature of changes wrought by the Major and Blair administrations rather than something with us from the time of Bagehot.  The Nolan principles were Major’s riposte to his problems with sleaze, and ethics watchdogs and standards advisers and so on have in the years since become a central part of governing in Whitehall. In 2015, the then ‘Director General Propriety and Ethics’ Sue Gray was memorably described as the ‘most powerful civil servant you’ve never heard off’.  These are the people that Johnson now strives to shake off, the Alex Allan’s (resigned), the Lord Geidt’s (in post but at the time of writing considering his position) and the Kathryn Stone’s (hanging in there).  He wants to reshape public discourse in his own image, returning to a time when prime ministers enjoyed the fruits of office without the cares of accountability, a new Walpole perhaps (Robert, not Horace – you have to go back a long way to find a Prime Minister as willing as Johnson to trample on public rectitude for personal advantage).

There is a wider dimension to this, as there was in the mid-1990s.  I wrote about this aspect to the sleaze crisis in ‘The Party in Government’, an essay for the London Review of Books that appeared in March 1995:

‘The corruption of this long era of Conservative rule extends beyond personal venality.  Though loudly committed to the rule of law, especially when it meant ruining the unions in the early Eighties, the Government has found its own actions frequently castigated as unlawful in the British courts, and pilloried in Strasbourg for the infringement of human rights.  Its response has been to contrive legal ruses the effect of which has been often to place it quite literally above the law.  The contempt towards one great limb of the British Constitution has been matched by the scorn it has shown towards another for which it has also affected respect.  The Government’s cynical control of the Commons and its contemptuous disregard of the Lords have allowed it singlehandedly to turn Britain into the impoverished and unequal national that it now finds itself to be.’

 

During his still brief time in office, Johnson has gone much further than his predecessors, exposing as empty such supposedly entrenched aspects of the unwritten constitution as the imperative of insulating the Queen from politics (the unlawful prorogation of parliament), and the importance of respecting the will of the devolved legislatures (the Sewel Convention). He has deepened the usual Tory threats to destroy the BBC while seeking to place his own creatures in positions intended to be independent (Paul Dacre a recent (failed) example; William Shawcross in charge of the Prevent review; the Brexiteer Gisela Stuart as civil service commissioner).  His government has proposed changes to the electoral law that will both make its retention of power easier while at the same time stripping the electoral commission of many of the powers of oversight that it currently enjoys and of which recently he has been a target (the refurbishment of his flat in Downing Street).

The most recently opened fronts are against the rule of law and human rights.  The Justice Secretary Dominic Raab wants to emasculate the Human Rights Act (one of the Blair administration’s most important achievements) and the government appears to have recently hinted at a power to overturn specific rulings of the courts of which they disapprove and/or which they judge inconvenient. Perpetually mocked by Johnson’s English administration, Scotland’s threat to secede may soon come to fruition, while Northern Ireland’s constitutional right to clear off into the Republic of Ireland gathers support by the day (north of the Border anyway).  I never thought that the weaknesses that have been obvious in the UK’s unwritten constitution that I have been teaching for decades would eventually destroy the country – but that does appear to be what is happening under Johnson’s watch.  Here is a far deeper malaise than any experienced in the 1980s.

Will the Johnson project succeed?  Its weakness is the same as that which dogs all populists: the only coherent policy it possesses is the accumulation of power for its own sake, not for any particular purpose. Johnson and his gang are fast running out of people they can blame for their indecision, indirection and vacuity on everything except their own interests and the retention of their own power.  There are clear signs that that section of the public once so mesmerized by Johnson are tiring of him.  Freed of their dependence on him for their seats, the wrath of the scorned Tory MPs will be compelling to watch.  The quiet guard dogs protecting the constitution may finally manage to bite as well as bark.  But unless the downfall of Johnson precipitates dramatic constitutional change – proportional representation; a formalisation of checks and balances; a clamping down on the influence of money in politics; a reckoning with the country’s colonial past – we will be once again back where we are now before too long, the constitutionally ‘impoverished and unequal country’ that I wrote about twenty-seven years ago.

 

Law, Misc

The Case of Dinah Rose, Magdalen and the Bar

Dinah Rose appears to have survived. In the rush of current affairs in the noisy internet age it seems hard to believe that it was only a couple of weeks or so ago that the position of this leading QC as President of Magdalen College Oxford appeared precarious. Rose has now appeared in a case before the Judicial Committee of the Privy Council in defence of the Cayman government’s determination to persist in its prohibition of gay marriage. Rose is reported to have been supported by her College’s student representative body, and the Bar has closed ranks behind her, pointing to the ‘cab rank rule’ under which it is said that barristers have to take the cases that come before them as long as they are available, and there is no conflict of interest.

If it is indeed all over, it should not be. I have met Dinah Rose perhaps once or twice and corresponded with her from time to time. I have long been a fan (from afar) of her brilliant advocacy on behalf of her clients, a compelling articulacy that flows out of a fine intellect and is further buoyed by her fearlessness and (never to be underestimated at the Bar) her sheer resilience. But the problem with her taking this case has nothing to do with the Bar; whether or not it flouts or follows the supposed cab rank is neither here nor there. (And what meaning can that supposed rule have in any event when you can always set a fee to make yourself unavailable whenever offered work is unfancied?) No: the issue here is Dinah Rose’s presidency of her college.

I am an academic as well as a barrister so in a tiny way my position resembles that of Dinah Rose. I say ‘tiny’ because I am only a small cog in my university’s machine, teaching students, marking essays and all the rest of it. My main concern has been with making sure my appearances in court do not come at the expense of the time I can give to my day job. We had a head of department a few years ago who was also a barrister and who defended the government’s work in Iraq however nasty the other side claimed it to have been; certainly this made a few colleagues queasy. But neither he nor I were even close to Rose’s position in her College. She is its president, its public epitome. For good or ill, what she does, she does as president. No ‘Chinese wall’ can divide her up, marking this bit of her as the Magdalen bit and the rest of her as the feisty lawyer who will do what it takes to win for whoever is lucky enough to get her on their side. As the President of Magdalen, and particularly in light of the College’s explicit equality policy, she had a duty to the LGBTQ + students in her care and an obligation to provide a safe and secure environment for them.

The college commits to upholding the Equality Act and specifically mentions a commitment to eliminating discrimination and harassment on grounds, inter alia, of sexual orientation. This equality duty is surely incompatible with its President accepting a brief in a cause that can be widely seen (and not unreasonably seen) as homophobic. Assuming she is not doing the case for nothing (which strikes me as unlikely) Dinah Rose has been faced with a choice which she exercised in favour of accepting this, presumably lucrative, brief. As the executive committee of Oxford’s LGBTQ+ society put it: ‘The minute Dinah Rose accepted the position of President, the duties of her new role became pre-eminent.’ The Oxford African and Caribbean Society has issued a strongly worded critical statement, declaring with venomous clarity that ‘Dinah Rose cannot in good faith help to set back LGBT laws in a Caribbean island and simultaneously claim to support LGBTQ+ and BAME students in Magdalen.’

There is a wider question here, too, about the many barristers who have achieved headships of Oxford and Cambridge colleges – a recent trend which looks if anything to be gathering pace. I am not surprised by this: good lawyers are terrific chairs of meetings and the best of them personable too, no doubt as good with students as they are with clients and instructing solicitors. But these are real jobs, not pastimes for the ethical part of themselves.

Constitution, Human Rights

The Glory of the Hamlyns

How a little-known benefactor established an academic series of immeasurable value

 

(as published in Prospect)

Emma Warburton Hamlyn was born on Guy Fawkes Day 1860 in Torquay. Her father was a law clerk and after a while started work as a solicitor, a successful one of sorts, becoming a commissioner for oaths, doing a little bit of work from time to time for the province of Nova Scotia and eventually making it onto the magistrates’ bench. Emma was an only child, with her mother mainly at home but helping out in the local schools and generally doing her bit for the Methodist faith which she shared with her husband. The family lived in Torquay pretty well all their lives, Emma never seems to have budged after her parents’ death: the most assiduous of searches have revealed membership of nothing, visits to nowhere, relationships with no one. She died in 1941, aged 80, in the house in which she had spent most of her life.

Anonymous in life, Emma Hamlyn has been immensely celebrated in death. Generations of lawyers recall her name with affection. In the decades since her apparently lonely demise, the greatest jurists of their day have grabbed the chance of her imprimatur to reach global audiences in the tens of thousands. Lucky law students have the chance to attend a “Hamlyn” lecture if their enterprising professors have managed to secure one for their university; many more study the lecture texts published annually as a book under her name. How can all this have happened?

Against legal advice and out of the blue, Emma Hamlyn chose to leave the residue of her considerable estate for the “furtherance by lectures or otherwise among the Common People of this Country of the knowledge of the Comparative Jurisprudence and the Ethnology of the Chief European countries including our own.” Her express intent was that, as a result, “the Common People of our Country may realise the privileges which in law and custom they enjoy in comparison with other European Peoples and realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them.” Legal action in the Chancery Division was needed (as Miss Hamlyn had been warned) before the show—a set of annual lectures was the agreed format—could be got properly on the road, with (what is now) the University of Exeter leading in their organisation and the universities of London, Leeds, Belfast and Wales helping out with trustees.

The first lecture, Freedom under the Law, was delivered at the University of London’s Senate House in 1948 by Lord Denning and set the standard for the subsequent lectures. He wasn’t Lord Denning then of course, just plain Sir Alfred Denning, new to the Court of Appeal. But what a booking, a bit like getting the Rolling Stones to launch a series of concerts before anyone knew who they were. Denning went on to become a legal rock star, lived long, wrote much and in that era before mandatory retirement hung on as a judge Ruth Bader Ginsburg-style until the early 1980s (when a recklessly unchecked book did for him). Reviews of this first set of Hamlyn lectures stressed the beauty of Denning’s writing and the ability he had to reach both the “common people” and the legal glitterati. The course of the Hamlyn lectures was set. In the 1950s, Lord Devlin lectured—famously—on juries as “the lamp that shows that freedom lives” and the legendary legal polymath Glanville Williams on “the proof of guilt.” The 1960s saw the first woman (Baroness Wooton, on crime, bursting the format with a book in two parts) and moves into foreign jurisdictions: maybe the organisers thought — heretically! — that those abroad might have the occasional good idea. Reflecting the times as well was a new interest in welfare law, a sign of the innovative instincts of the trustees. Perhaps the most famous Hamlyns of all are those of Lord Scarman in 1974—English Law – the New Dimension—talking about human rights before anyone really knew what they were. Constitutional Fundamentals by Professor William Wade in 1980 nearly launched a recherché legal revolution to impose those self-same human rights, with a wonderfully bonkers argument about how all it took to achieve a revolution was a few swear words from judges. (“Changing the judicial oath” was how this old-school but wildly fresh thinker put it.) Another early booking, Denning-style, was Brenda Hale, 1995, a newbie in the High Court’s Family Division. Cambridge University Press took the lectures over in 2005 and they now have a glossy website, lovely photos and an energetic publicity drive behind them. Eleanor Sharpston QC gives the first of her three—remotely, of course but notionally from Edinburgh—on 29th October, on the European Union and the rule of law: as a senior advocate within the European Court of Justice until Brexit there will be much of topical as well as academic interest for sure.

Of course you cannot have a lecture series with mega stars every year. We jobbing professors get a look in too, from time to time. I gave the Hamlyns in 2005, on the catchy title (for which I had one of the organisers to thank) Can Human Rights Survive? It is still easily my best-selling book (not a difficult achievement admittedly). I started mine at LSE (where I work) and then went to Durham (where some of my friends who violently disagreed with me worked and who were gagging to have a go at me) and from there to Belfast. (Dublin was ruled out: a bit too foreign for Miss Hamlyn it was decided.) The bequest paid my way, rewarded the attendees with a drink afterwards and laid on a lovely dinner at each venue. (My mother drove across the border for the Belfast one, got herself into the dinner of course even though she was unexpected, and then mortifyingly made an after-dinner speech about what a good little boy I had been; in memory, though, this has grown into the highlight of my academic career.) The Hamlyns do that—bring people together (and not just relations), and when done well focus attendees’ thoughts on a legal issue which has been rendered accessible by a speaker who knows both their stuff and the nature of the audience, and who can do it all with panache.

Covid-19 has pinched all our lives even if it has not destroyed them, and this year’s distinguished speaker will have to make do without the canapés and conviviality. In giving the lectures at a time when over 800 lawyers have felt compelled to sign a letter to the Prime Minister and Home Secretary calling on both to desist from using hostile language against those in the law profession, Sharpston will surely be choosing to reassert the importance of the rule of law. I used to be pretty scathing about judges and lawyers and the Inns of Court and all their paraphernalia of privilege—one of my Hamlyns went on and on about this (hence my Durham friendly enemies finding lots to attack on the night). But now I am not so sure. I guess my hostility was all the wilder for what I had for so long taken for granted about the United Kingdom—that the government would respect the law; that separation of powers would not be regarded as dispensable; that the executive would not exploit the vagueness of the UK constitution to hoard power without regard to the consequences. It is thought that Emma Hamlyn founded her trust in memory of her father, though she never said so. I like to think that the magistrate would have been pleased with what his daughter has set in train, and that there will be many in the (remote) audience nodding in agreement, and many Emma Hamlyn’s too—decent, quiet observers of the UK who know something has gone decidedly rotten.

 

Civil Liberties, Human Rights, Law, Misc

The Overseas Operations Bill: a license for atrocity

The Overseas Operations (Service Personnel and Veterans) Bill is what happens when the pub bore takes over British defence policy and there is no one left to prevent his cranky anger being turned into law. A rambling hostility to Johnny foreigner combines with a maudlin concern for the stresses faced by British troops on duty abroad to produce a measure which is almost as embarrassing to good governance as it is to those who care about contemporary British values.

The plan outlined in the bill is to compel prosecutors to let soldiers off the hook for crimes committed overseas as long as five years has elapsed since their alleged occurrence. We still say we have independent prosecutors and the rule of law in this country so a sweeping indemnity bill was out of the question. Instead the circumstances have to be “exceptional” for such proceedings to continue, with “particular weight” being given to factors that “reduce… culpability” such as the “adverse effect (or likely adverse effect)” of a suspect soldier’s “experiences and responsibilities (for example, being exposed to unexpected or continuous threats, being in command of others who were so exposed, or being deployed alongside others who were killed or severely wounded in action).” This “adverse effect” might relate to a soldier’s “mental health” or even “their capacity to make sound judgements or exercise self control.” Just in case your accused soldier is left exposed for his or her crimes while more vulnerable criminal colleagues walk free, the prosecutor is also required (emphasis added) to “have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.” (Yes, all these quotations are directly from the bill, not a ministerial speech, or a letter to the Telegraph.) And just in case things go wrong, there is a long-stop guarantee against inappropriate prosecutions in the shape of a requirement for the consent of the attorney general. That office is held at the present time by Suella Braverman.

The protections afforded these criminal suspects among the armed forces are explicitly extended to cover those accused of a range of domestic criminal law as well as the great majority of even the most serious international crimes (genocide; crimes against humanity; war crimes). They do not apply if the victim is a Brit rather than a foreigner. Other provisions aim to curb the capacity of human rights law to reach military actions overseas, and then—revealingly—anticipate departures from human rights law? in relation to future “significant … overseas operations,” retaking Calais perhaps, or laying siege to Brussels. The UK the promoters of this bill have in mind is one that has recovered its imperial greatness and the wonderful impunity that comes with being the international hegemon. Oh happy days!

Why has the government done this? Many senior figures in the armed forces are certain to be unhappy at this unravelling of their brand as modern, rule-based, civilised and so on. The International Criminal Court is bound to see it as a direct challenge to its authority.


The bill is part retaliation, part provocation.

So far as the first of these is concerned, since the invasion of Iraq the courts have been robust in their pursuit of the armed forces in relation to a series of alleged violations abroad of ordinary and international criminal law. In a recent article included on this site (TORTURE THEN AND NOW: THE ROLE OF THE JUDGES) I have detailed the extent to which the judges have had to overcome high levels of hostility, obstruction and deliberate obfuscation from the authorities in cases of this nature. Nor has it only been the judges: on one occasion even the government’s lawyers went so far as to consider sending in the Metropolitan Police to try to find relevant materials within the Ministry of Defence. This is all a far cry from the good old days when, in the analogous context of Northern Ireland, judges like Lord Widgery, Lord Denning and Lord Diplock went out of their way to protect the forces of law and order from close scrutiny. The government has not liked the result, and nor have many parliamentarians. A Defence Select Committee report in 2017 attacked the use of the law in this context and then the exposure of one solicitor’s wrongdoings in the field of evidence-gathering gave the antagonists of what they call “lawfare” their chance. This bill is the result.

Then there is the provocation. The government appears desperate to get the leader of the opposition Keir Starmer off Covid-19 and onto “elite metropolitan issues” like the rule of law, human rights and the prosecution of patriotic soldiers for “doing their job.” It was the same in the mid-1990s when a then-rampant shadow home secretary Tony Blair was constantly being forced to defend his party’s hostility to UK anti-terrorism laws—to his intense embarrassment. Starmer has not yet risen to the bait. So far as this bill is concerned that has been hugely disappointing. It can surely not be doubted that the British public know the difference between doing your duty and murdering and torturing innocent people. This was a conversation Starmer could have afforded to have, and where he might well have been persuasive. Next up will be the Human Rights Act. Labour will have a big decision to make then about whether to defend it or let it go. That will tell us a great deal about how they will govern: compromises of this serious a nature may be made in opposition but their moral contamination is hard afterwards to shake off.

With this bill we have further evidence of what the UK does not stand for: human rights, an ethical military and the rule of law. With Brexit we know it rejects regional co-operation too. What’s left? Trade deals with the Old (aka White) Commonwealth? The display of imperial power? You cannot govern a country on the basis of nostalgia however loud you shout.


Misc

The Government defies international law

Before getting to the remarkable turn the UK government is inviting parliament to make with regard to what we can I suppose still call Brexit, it is worth recalling some background.

The European Union (Withdrawal Agreement) Act 2020 declared itself a measure ‘to implement, and make other provision in connection with, the agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU’. It received Royal Assent on 23 January.

The Agreement to which it refers was finalised on 19 October 2019. It contains a Protocol on ‘Ireland/Northern Ireland’. Under the terms of this Protocol (Article 10(1)), a range of EU laws (set out in Annex 5 to the Protocol) ‘shall apply to the United Kingdom, including with regard to measures supporting the production of and trade in agricultural products in Northern Ireland, in respect of measures which affect that trade between Northern Ireland and the Union which is subject to this Protocol.’ There are exceptions to this requirement (Article 10(2)) which are to be determined by the ‘procedures set out in Annex 6’ of the Protocol. These procedures entail the setting of the detailed rules by an EU and UK ‘Joint Committee’ (established under Article 164 of the main treaty) which then has the power to vary them. But if ‘the Joint Committee fails to determine the initial level of support and percentage in accordance with [this Annex], or fails to adjust the level of support and percentage in accordance with [it], by the end of the transition period or within 1 year of the entry into force of a future Multiannual Financial Framework, as the case may be, application of Article 10(2) shall be suspended until the Joint Committee has determined or adjusted the level of support and percentage’: in other words, all favourable treatment will be out the window.  The institutions of the European Union, and in particular the European Court of Justice, are specifically given a role with regard to the interpretation of, among other provisions, Article 10: Article 12(4).

All of this clearly constituted a huge range of concessions by the UK to the ongoing application of EU law within the state. Anything with a whiff of Northern Ireland to it becomes exposed to EU restrictions even if the investment under scrutiny is not based in Northern Ireland or not primarily aimed at that part of the United Kingdom. But the agreement of the 19th October is a Treaty and the Protocol is part of it: no one doubts that.  Nor is there any dispute that the treaty forms part of international law by which the UK has agreed to be bound. Distasteful in retrospect perhaps, not understood at the time by those who signed it, but so what?  Countries often sign treaties they dislike and want to get out of later. But they are generally stuck with them. The example of Germany under Chancellor Hitler did not end well, despite the short term domestic popularity of his rejection of the Treaty of Versailles. And unlike that German leader, the United Kingdom constantly protests its support for international law, calling for its better enforcement and excoriating those countries (like China in relation to Hong Kong) that it says breaches its terms.  Even when the UK has waged controversial wars (such as with regard to Iraq) it has gone to endless trouble to establish an international law explanation, however flimsy others might regard it.

The UK government has now published a bill which promises (or threatens) to depart from this decades-long approach to international law.  If enacted, the United Kingdom Internal Markets Bill as currently drafted purports to authorise domestic public authorities to seize the powers of the Joint Committee unto itself: clause 40. This might be to implement the Protocol (clause 40(2)(a)(i)) but it does not have to be: clause 40(2)(a)(ii).  Clause 42 envisages ministers having the exclusive power to manage the movement of goods between Northern Ireland and Great Britain. A power of unilateral interpretation of Article 10 of the Protocol is likewise asserted: clause 43. And then, just in case all this was thought to be some mistake or administrative aberration, clause 45(1) asserts that both clauses 42 and 43 and their related regulations shall have effect ‘notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent.’  This is specifically said to include the Ireland/Northern Ireland Protocol: clause 45(4)(a).

What is going on?  It is obvious why a senior government lawyer resigned: it was his job to ensure that bills respected the law, and this one manifestly does not. Maybe the government intends to withdraw the clauses but if it does humiliation cannot be avoided: these are such bald claims that they cannot be finessed by a qualifying word here or there. Maybe it hopes that the measure will fail in Parliament and so it will have demonstrated its determination without openly flouting what the country has long claimed to be a central principle. Again it is hard to see this happening without an embarrassing insistence on its own defeat: such is the strength of both its control over the lower house and its capacity to override the Lords. Will the courts strike the clauses down?  Again very unlikely as the Bill is unequivocal and recent case-law (not least the Miller decision on the prerogative) has emphasised parliamentary sovereignty rather than wider ethical claims of human rights and the rule of law (as one or two earlier cases did). Maybe the powers being discretionary there is no intention ever to deploy them, but if this is the plan then why bother going to all this trouble for nothing? Perhaps it is a cunning plan to lure the EU into ending all talks and so guarantee a ‘no-deal’ Brexit for which it hopes the EU will get the blame, but the provocation is so egregious this outcome seems unlikely, and anyway why turn guaranteed national decline into immediate suicide?

Of course there may well be international and European legal proceedings.  In the short term though this deliberate use of Ireland to raise the stakes with regard to the EU puts a hard border in Ireland back on the agenda, and closer now than it has ever been: the EU simply has to have territorial boundaries to maintain the integrity of its single market and this will have to be in Ireland if it is not in the sea between Northern Ireland and Great Britain. Anyone with any knowledge of Britain’s conduct in Ireland should not be in the least surprised by this. A former Secretary of State’s claim that Britain has no ‘selfish, strategic or economic interest’ in Northern Ireland may have been true in 1990 when it was uttered but it is manifestly not the case today.

The greatest damage, though, will be to the United Kingdom’s sense of self. It runs no empire anymore; indeed it can barely hold itself together.  Its government hates human rights and tries to abandon them when it can. Regional co-operation is out.  True the government says it is committed to British values, but that can’t be true any longer as these are said to include ‘the rule of law’. The freedom Brexit seeks to achieve has no content.

10 September 2020

Misc

In Quarantine

An anonymous academic borrows my blog post to describe how LOCK-DOWN is playing out for them.

So what can I say?

I have a salary, access to plenty of shops, my health, a garden and a family (with all of whom I get on). Sure I have to do a Zoom meeting now and again, do other worky stuff, and generally stay on top of things. The kids are little and there is neither school nor a child minder. The kitchen needs to be cleaned, the bathroom too, and I need to remember where the hoover is.

Difficult it is not; relaxing it (almost) is.

The experience is so different from that of so many that I hesitate to write anything here: I am the definition of privilege.

And yet what’s new?  I have been for years, so affluent that I can flaunt socialist leanings, so educated that I can afford (in every sense) to look with more interest than horror on the world as the decline warned against for so long finally kicks in. And wow has it come upon us fast: extreme weather, pandemics, flooding and months-long fires screaming at us ever more loudly that our game is up. This virus no doubt will pass, just as the Australian bush gradually stopped burning (did it?), but they and they rest will be back.

We will survive as a species but as humans we are changing.

Our masks and our socially distancing will be as common place as clothes, and as hugs and handshakes used to be. Will it be worse even than that? Behind its veneer of empathetic bonhomie, privilege is a dangerous enemy, especially when cornered. Is the future also one of gated communities, paramilitary police and selective access to our no-longer-so-natural resources?

It does not have to be.

There might survive through the present times a flicker of a memory of what it is like to live in a fair society. Social democracy got a decent wind after the Second World War because capital power (privilege) feared something worse, true revolution. Might the prospect of dystopian chaos do today what the fear of communism did in the late 1940s: concentrate the minds of the powerful, to concede to survive? We need political leadership though, and who goes into (proper) (ordinary) democratic politics today?

A wandering mind is another creature of privilege, only made possible by the satisfaction of basic needs, and the time quarantine gives to think. Part of me wants to die before the road to the end is where we all have to be. But mainly I want to watch the unravelling and fight as best I can, using what few tools I have, to help restitch the world as the social democratic community that is its only escape to a kind of safe space.

 

A metropolitan professor