A conflict of interest: the Saudi state and the UK’s Ministry of Justice

25th January 2015

The proposed  commercial deal between the Saudi Arabian state and the UK’s Ministry of Justice (MoJ) – whereby the Saudis will pay some £5.9 million for MoJ assistance for its punishment system – prompts a number of concerns.

The first concern is in respect of transparency.  The  MoJ is refusing is disclose any detailed information about the commercial proposal.  The MoJ is also refusing to disclose the accompanying Memorandum of Understanding (MoU) which was signed between Saudi Arabia and the MoJ in September last year (and the signing of which was publicised by the UK embassy in the tweet above).

The second concern regards domestic policy.  Is it appropriate, at a time of severe cuts, for the MoJ to divert scarce civil service resources from the English and Welsh offender management system to assist a punishment regime such as that of Saudi Arabia?  And, related to this, can the UK really claim to have any particular expertise in offender management, in view of the regular damning inspection reports?

The third concern is about whether the proposed assistance for the Saudi punishment system will, in fact, improve the inhumane and brutal treatment of prisoners.  For example, as Amnesty International has asked about this proposed assistance, will the MoJ be “going to be challenging and seeking to prevent abuses when it comes across malpractice, and indeed what human rights safeguards and training are going to be built into any programme”?  In other words, what positve difference will the proposed assistance make?

The fourth concern is the simple of one of legitimacy: will the proposed assistance wrongly offer legitimacy – a valuable seal of approval – to the Saudi punishment system?

The fifth concern is perhaps the most serious, from the point of view of the legal system of England and Wales.  Will the proposed commercial deal create either an actual or apparent conflict of interest for the MoJ?

This final concern is not a fanciful point.  In 2006, the Saudi state forced the UK’s serious fraud office to drop an investigation into BAe (for details, including documented evidence, see the 2008 “Corner House” decision of the House of Lords – a case which should be read by anyone interested in the influence the Saudis have over the UK state). There are many examples of those involved with the Saudi state seeking to coerce the legal process in this jurisdiction (see here and here).

As the MoJ is responsible for the integrity of the legal system of England Wales – and the cabinet minister responsible for the department even has a legal – some would say, constitutional – duty to uphold the rule of law – is it open to the MoJ to enter into a commercial relationship with a foreign state which as Corner House and other examples show has a documented record of seeking to coerce the domestic legal process?

 

However, it is one thing to articulate grounds of concern; it is, of course, another to be satisfied that those grounds have any substance.

So: is this proposed deal a problem?

And what is the available information?

What follows (at length) is what appears to me to be the relevant information about, in order, the MoJ, the National Offender Management Service, “Just Solutions international” (JSi), the MoU, and the proposed commercial deal.  I will then set out the extent to which I think the concerns are made out and why, in particular, a commercial relationship between the MoJ and the Saudi regime would create an unacceptable conflict of interest for the MoJ.

 

The Ministry of Justice

The MoJ is a fairly new UK government department. (A note: although the MoJ has responsibilities across the UK, it is responsible for the legal system of England and Wales, and not for the separate jurisdictions of Scotland and Northern Ireland.)

In essence, the department was formed out of the old Lord Chancellor’s Department (which was responsible for the court system of England and Wales) with additional responsibilities for prisons and probation – the punishment (and rehabilitation) system.  It seemed a Good Thing at the time, and the notion of an integrated court-prison-probation system is one which many would nod-along with.

The cabinet minister for this new larger department ended up with two titles. First, the minister would be a “Secretary of State” – the usual title for a cabinet minister with departmental responsibilities.  And the minister would also hold the ancient title of “Lord Chancellor” – nominally head of the judiciary and historic supervisor of the courts.  The then Prime Minister had intended to abolish the latter title but, being constitutionally illiterate, he had not realised it would not be possible without extensive legislation.

And the two titles pointed to a tension in the department: on one hand, the minister was responsible for a spending department, with all the budget pressures that involved; and, on the other hand, the minister had a special position in respect of the integrity of the legal system.  The Lord Chancellor was there in part to defend the independence of the judiciary, and the post was usually given to a distinguished lawyer-politician at the end of their career.

When the department was created there were fears that the important role of the Lord Chancellor in respect of the rule of law would be diminished; and that is why in the very first provision of the Constitutional Reform Act 2005 was set out that the duty of the Lord Chancellor in respect of defending the integrity of the legal system would be unaffected:

1.  The rule of law

This Act does not adversely affect—

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor’s existing constitutional role in relation to that principle.

This is a carefully worded provision. It does not create some statutory duty for the Lord Chancellor to uphold the rule of law.  It instead recognises a pre-existing duty.

Part of this new Ministry of Justice was re-titled the National Offender Management Service (NOMS).  In its own words:

We are accountable for how prisons are run in England and Wales. Through HM Prison Service we manage public sector prisons in England and Wales.

We also oversee probation delivery in England and Wales through the National Probation Service and community rehabilitation companies.

However, NOMS does not have any separate legal existence apart from the MoJ.  Its designation as an “executive agency” has administrative but not legal meaning. It is part of the MoJ, and its staff are civil servants and its resources are those of the civil service, funded by the taxpayer.

 

Just Solutions international

Just Solutions international (JSi) – complete with a gimmicky lower-case “i” for international – is something very few had heard of until the proposed MoJ deal with the Saudis came to attention.

JSi has its own “.com” website.  It is worth taking time to look around it.  There is even a glossy brochure.

On its “about us” page, you are told:

JSi provides a range of solutions across the Justice system, from policing through courts to prisons and community sentence delivery. A particular focus is on reducing re-offending and recidivism.

JSi has been created as a social enterprise by a team of entrepreneurs within the UK Justice system.

We deliver our services to customers in conjunction with NOMS.

This is at best misleading: JSi is not “in conjunction” with NOMS.  It is part of NOMS.  And its personnel are better described as civil servants within the MoJ than “a team of entrepreneurs within the UK Justice system” (whatever that could mean).

JSi is a label for NOMS, which in turn is a label within MoJ.  As I have already set out at the FT, JSi is not even a trading fund under the relevant legislation, and the MoJ has had to admit to parliament that JSi does not even keep separate profit and loss accounts.

JSi seeks to give the impression with its .com website (instead of the more appropriate .gov.uk sites for central government work) and heady talk of entrepreneurship, being a “trading arm” and representing NOMS “on all commercial issues” that it is something other than just civil servants within the MoJ with no greater legal power to sell civil service assets than any other civil servants.

In essence, an ambitious group of civil servants have given themselves a gimmicky name and set up their own .com website with the intention of selling their department’s assets somehow in “conjunction” with, well, themselves.

There is very little official information about JSi other than on their website.  On 9 October 2013, the Lord Chancellor and Secretary of State referred to the group in a speech to the World Probation Congress, where he said:

In response to this interest from around the world, we are setting up Just
Solutions International – a social enterprise – to enable this service to be
delivered in a commercial manner.

It will be able to make available knowledge and expertise relating to
offender management services to organisations in other countries that
work with offenders.

The new body is currently being piloted and we are looking to launch it in
April 2014. Our intention is that Just Solutions will be able to provide you
with access to all the services you will hear about during this conference,
including, to name but a few:
– development and improvement of probation services;
– prison estates, prison design, prison building and procurement;
– cutting-edge electronic monitoring systems; and
– payment-by-results and reducing re-offending mechanisms.

 

This, however, was not the first public mention of JSi.  For some reason, three months before the Lord Chancellor and Secretary of State’s announcement of its launch, the commercial opportunities for JSi is discussed on the PricewaterhouseCoopers blog.  Here, we told:

[NOMS] is exploring an option to establish a not-for-profit organisation to market its expertise in Justice internationally. The new operation, Just Solutions International (JSi), will re-invest any surplus into research that supports the work of NOMS.

Because spending cuts have diminished the budget available for this research, JSi is an example not only of government earning income on its IP, but also of it using that income to maintain a high standard of service delivery.

How PricewaterhouseCoopers (complete with gimmicky lower-case “w”) knew so much about JSi three months before the Lord Chancellor and Secretary of State’s announcement is anyone’s guess.

Curiously, the glossy JSi brochure also happens to use exactly the same distinctive “legal disclaimer” language as the glossy brochures of PricewaterhouseCoopers.

Is PricewaterhouseCoopers involved with JSi?  I put this to PricewaterhouseCoopers and they refused to comment citing “client confidentiality” (which at least perhaps suggests my request related to a client matter). Why “client confidentiality” would stop PricewaterhouseCoopers commenting now when they were happy to discuss the commercial opportunities on its own blog in 2013 is unknown. I do hope that blogpost was not a breach of client confidentiality and that it was signed-off by the MoJ.

For its part, MoJ denied that there are “currently” any private sector organisations/consultancies involved in the JSi project.

 

Other than the PricewaterhouseCoopers blogpost and Grayling’s announcement (both of 2013) there is then little public trace of JSi before the proposed Saudi deal.  I asked the MoJ what official documents have mentioned JSi before the proposed Saudi deal emerged.  Initially the MoJ refused to answer this question (along with many others).

I was then told JSi is referred to (though not named) in the UKTI Security Exports Strategy of 2014.  And indeed it is: page 25 of the document shows that the UK government intends to tout “offender management services” around the globe as a “security export”.

It is a remarkable read: the selling of offender management and other-prison-related services is set firmly in the context of national security and intelligence.  Selling such services is not thereby a MoJ frolic; it is part of a wider and coordinated government policy.

 

The MoU

On 11 September 2014, the Lord Chancellor and Secretary of State signed a MoU with his Saudi counterpart.  A photograph of the signing ceremony is in the tweet at the head of this post.  The tweet was posted by the UK embassy in Saudi Arabia.

The MoU regards judicial co-operation: in other words, how the respective legal systems of the UK (or just of England and Wales) and Saudi Arabia will work together.

In December 2014, in a report to Parliament, the MoJ said:

The Secretary of State visited Riyadh in September 2014 to sign a Memorandum of Understanding on Judicial Cooperation, to build upon the existing bilateral justice relationship, promote UK legal services in Saudi Arabia and raise awareness of the upcoming Global Law Summit. He also met UK lawyers with offices in Riyadh. Discussions were also held on judicial cooperation, King Abdullah’s reform programme, and human rights issues.

I have already noted elsewhere that noted that judicial cooperation between Saudi Arabia and the UK already seemed quite good before the MoU, as the 2013 transfer of Prince Saud bin Abdulaziz bin Nasir Al Saud indicated.

So what does this MoU say?

We don’t know.

One would think that it would be a public document.  It was announced publicly by the UK embassy who even published a photograph of it being signed; and it was reported to Parliament with a description of how it will build on (and so make a difference to) the existing relationship.  And it would, presumably, contain information about how the two legal systems will interact in way different to how they have interacted before, and this could be crucially important to affected individuals and companies.  It is the very sort of document which should be in the public domain.

The MoJ are refusing to publish the MoU.  I asked the MoJ directly for a copy, and the response was:

This is a shared document with the Saudi government so we are not in a position to publish it at present.  

This is a non-sequitur.  Of course it is a “shared” document: it is a memorandum of understanding signed by two parties – it is “shared” is in its very nature.  And the the fact it is a shared document – which will affect third parties with dealings with both legal systems – is why it should be in the public domain.

(I have put in a Freedom of Information request for the MoU.)

Judicial cooperation is something – like improving prisons – which is (usually) a Good Thing and one can nod-along with.  But given the Corner House case and other examples of where the Saudis have sought to exert illegitimate pressure on the UK legal system, the actual terms of any judicial cooperation between the UK and the Saudi state are clearly a matter for public concern.

 

The commercial proposal

In the same report to Parliament as the mention of the MoU is another passage describing the proposed commercial deal.

In a paragraph alongside one  saying how the UK will host a “Global Law Summit, a world-class international event to coincide with the 800th anniversary of Magna Carta” to “showcase the depth and adaptability of the UK legal system and will demonstrate the foundation that our rule of law has created for businesses to flourish” was this information:

Just Solutions international (JSi), is the commercial brand for the National Offender Management Service (NOMS) promoting products and services to international justice markets.

In August 2014, JSi submitted a £5.9m proposal to the Kingdom of Saudi
Arabia, Ministry of Finance to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service.

(This passage was first reported by David Hencke.  There is also mention of a proposed bid to another illiberal regime, Oman.)

There are a few things to note about the described proposal.

First, look at the dates: the commercial bid was made in August 2014, two months before the MoU was signed.  This means that the MoJ was simultaneously bidding for commercial work with the Saudi regime at the time it was finalising and entering into the MoU on judicial cooperation. (And remember neither NOMS nor JSi has any legal existence distinct from the MoJ –  they are simply labels.)

Second, the flow of cash will be from Saudi Arabia to the MoJ.  Most UK government contracts, of course, work the other way round – the government (though a complex legal process called “public procurement” usually buys in goods and services, rather than selling them to others.

Third, the amount of cash is £5.9 million.  This is nothing, of course, to the Saudis; but it is a significant amount to a department like the MoJ in a period of substantial cuts and strain on the legal aid system.  The money will be paid directly to MoJ and will not be accounted for separately.  In other words: things will depend on this much-needed money being paid. As the MoJ explained to me:

Any commercial work undertaken by NOMS falls within the overall NOMS budget. The aim is that it covers the costs of NOMS commercial and other international work and generates a surplus to invest in our own services.

If approved the bid will be fully funded by the client [ie, Saudi Arabia] Government, will not cost the British tax payer a single penny and will generate a surplus to be used to support our own services.

But fourth, the proposal is for “ a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service” which is surely a Good Thing, which we can all nod-along with.  Why such an anaysis is worth £5.9 million, and why the civil servants diverted from their work in UK will be in any good position to conduct such an analysis of what is a significantly different punishment system, are questions which are not answered.

 

But there other concerns, raised by Amnesty International (quoted here):

Given the prevalence of torture in detention, given that prisoners may – like Raif Badawi – face a flogging, and given that dozens of prisoners each year are taken out of their cells and publicly beheaded, we need to know how this scheme is going to help improve the situation?

Beyond the usual aspirational language, can Chris Grayling demonstrate that Just Solutions international will actually be able to concretely improve detention practices in Saudi Arabia without becoming complicit in abuse?

For example, is JSi going to be challenging and seeking to prevent abuses when it comes across malpractice, and indeed what human rights safeguards and training are going to be built into any programme?

These are serious points.

After David Hencke’s report and my initial FT piece, the Lord Chancellor and Secretary of State was asked about the proposed deal on television and he said he was looking at the deal “carefully”.  This, of course, a deal which he put before Parliament in his department’s report in December 2014.

I posed thirteen questions for information and documents, all of which were refused with a blanket statement.  I was even told dismissively that the MoJ would “not provide a running commentary” – even though the requests for precise information and documents and not for “commentary” at all.

However, tenacity and escalation sometimes pays off, and late on Friday I was provided with further information.

Question: When is the proposal expected to be signed?

Our bid is under consideration and may not be successful. We do not know the timing of bid evaluation and decision making – this depends on the pace of the Saudi Procurement process.

Question: What was the answer to Amnesty’s questions? (Quoted above.)

We believe that by bringing our standards on issues such as human rights into international delivery we will improve detention practices.

We should recognise that our correctional services are well viewed by other Governments who also understand our approach to human rights.

When other countries approach us for assistance therefore they do so in full knowledge that we will only offer advice and support that complies with our own human rights standards.

We have already seen and challenged practice in other countries and have been instrumental in the change of practice in other countries.

Question: Why has the Secretary of State now said he is looking at the Saudi proposal carefully? What does this mean in practice?

All international activity considered by NOMS is subject to a careful assessment process and sign off by MoJ; FCO and our local Embassies.

This includes an assessment about whether our possible activity would improve human rights outcomes.

This process was completed prior to our bid to Saudi.

And interestingly, the MoJ added:

We would expect to repeat this process if the Saudi Government decided to offer NOMS the contract. In that case the Secretary of State would have the opportunity to review the earlier decision in the light of current issues and considerations.

The final decision may be to continue to contract (should it be offered) or to withdraw from the process.

So it is not a done deal; and the Lord Chancellor and Secretary of State will consider “human rights outcomes” before signing any contract.

There was, of course, no good reason why any of this information could not have been provided to begin with.

I also asked the MoJ about the conflict of interest – the “Corner House” question. Was it open to the Lord Chancellor and Secretary of State to enter into a commercial relationship with a Saudi state which uses threats and coercion to disrupt and corrupt the domestic legal system?  How could the Lord Chancellor and Secretary of State be able to stand up to its new “client” if the Saudi state again issues threats which would affect the rule of law?

The response on that point:

A MoJ spokesperson said:
“The British Government’s position on human rights is a matter of public record and we regularly raise our human rights concerns with the Saudi Arabian authorities at the highest level.

“No aspect of our commercial relationships prevents us from speaking frankly and openly to them about these or other issues.”

So that’s alright then: a high-value commercial deal by which the MoJ will receive £5.9 million which will be used to fund other services, contained in a commercial proposal which it will not disclose but was made at the same time as the MoJ negotiated a MoU on judicial cooperation will not have any impact at all on the MoJ “speaking frankly and openly” to its “client”.

 

Conclusion: a conflict of interest

So, are any of the concerns articulated at the head of the post made out?

In respect of transparency, the simultaneous MoU and commercial bid are not in the public domain, and both of them should be, even if there was no question of a connection between the two.  Both are documents which, on their own terms, should be published in the public interest.

In respect of domestic policy, your view on whether this is a a good way of scarce MoJ resources to be used – especially in a period of substantial cuts – will ultimately be a value judgment.  And most people who follow the operation of the prison and probation services will legitimately wonder if the UK is in any position to market expertise abroad.

In respect of whether the proposal will improve the lot of those in the Saudi punishment system, your view will partly depend on whether you are satisfied by the the MoJ’s (eventual) responses to the questions posed by Amnesty International. And even if the assistance is a Good Thing, there is no reason why it should be offered by the UK on a “commercial” basis.

In respect of whether the proposal will give wrongful legitimacy to the barbaric Saudi punishment system will also ultimately be a value judgment.

However, in respect of the the concern as to whether the proposal creates a conflict of interest, the position is clear.

The MoJ, responsible for the legal system of England and Wales, is seeking a commercial relationship, by which it intends to make a surplus to be used for other services, with a foreign state which as the Corner House case alone documents coerces the legal system of England and Wales by illegitimate means at its disposal.

In these circumstances, it cannot be open to the Lord Chancellor and Secretary of State to enter into a commercial arrangement with the Saudi state.

Even if there was transparency, and even if this was (somehow) a good use of civil service resources which would benefit the lot of those in the Saudi punishment system, and even if there could be no doubt that MoJ will stand up to the Saudis when abuses occur – in other words, even if there was nothing else concerning about this proposed deal at all, it still should not go ahead because of the conflict of interest the deal will create.

The Lord Chancellor and Secretary of State for Justice cannot combine the duty to uphold the rule of law and protect the integrity of the domestic legal system at the same time as entering into a commercial deal with the Saudi state described in the Corner House case (and other cases).

 

In summary: whatever else is wrong about this deal, the Lord Chancellor and Secretary of State for Justice should not enter into a high-value and beneficial commercial relationship with a Saudi state which is well documented as using illegitimate force to disrupt the legal system of the UK.

The Ministry of Justice and the Saudis: the unanswered questions

22nd January 2015

So yesterday I asked the press office of the Ministry of Justice questions about its £5.9 million “commercial” proposal to the punishment system Saudi Arabia (see here and here):

1. Can I please have a copy of the MoU signed between the Secretary of State and Saudi

2. Can I please have a copy of the commercial proposal put to the Saudis

3. Can you provide full details to what is to be offered to the Saudis under the commercial proposal

4. Can you provide set out the extent of the civil service resources which are to be used in the proposal

5. When is the proposal expected to be signed?

6. What are the answers to Amnesty’s questions as follows:

Beyond the usual aspirational language, can Chris Grayling demonstrate that Just Solutions international will actually be able to concretely improve detention practices in Saudi Arabia without becoming complicit in abuse?
For example, is JSi going to be challenging and seeking to prevent abuses when it comes across malpractice, and indeed what human rights safeguards and training are going to be built into any programme?

7. What is the current budget for JSi [Just Solutions international, the (supposed) commercial vehicle being used by MoJ]?

8. Other than the mid-term report, what mention has there been of JSi in any official publications?

9. What is the headcount for JSi?

10. Who paid for the “.com” website for JSi and why is it not a “.gov.uk” website?

11. Why has the Secretary of State now said he is looking at the Saudi proposal carefully? What does this mean in practice?

12. Please set out the commercial experience/expertise of those engaged in the JSi project? A quick look at open-source sources reveals little or no commercial experience/expertise at all.

13. Please identify all private sector organisations/consultancies involved in the JSi project.

None of these questions would seem difficult to answer, and they should not be controversial.

Today I had the response:

“At this point in time we have no further comment to add from what we said at the weekend on this issue:

“A Ministry of Justice spokesperson said:

“Just Solutions international provides knowledge and expertise of prison and offender management services to international organisations and governments who work with offenders.

“It has been government policy for many years to work with overseas governments and help them develop their criminal justice systems, utilising that knowledge to bring funds to the public purse.

“JSi does not work with countries unless it is completely safe to do so and details of any contracts will be made public when agreed.”

This seemed odd, so I followed up asking why the MoJ was refusing to answer each of the individual questions I posed and, in particular, what was the reason why MoJ are not disclosing the MoU referred to here.

The response:

“Sorry, we’re not going to give a running commentary on this.”

I had not asked for a running commentary, or for any “commentary” at all, just for the information referred to in my questions on a matter of public interest.

The MoJ and the Saudis

20th January 2015

Over at the Financial Times website I have a post on the Ministry of Justice’s proposed deal with the punishment system in Saudi Arabia.  Please go and read it – access is free (for a number of pieces a month) though registration is required.

Continue reading The MoJ and the Saudis

Je suis Charlie: Orwell on the fear that extremists have of being laughed at

George Orwell in The Lion and the Unicorn:

“One rapid but fairly sure guide to the social atmosphere of a country is the parade-step of its army.

“A military parade is really a kind of ritual dance, something like a ballet, expressing a certain philosophy of life.

“The goose-step, for instance, is one of the most horrible sights in the world, far more terrifying than a dive-bomber.

“It is simply an affirmation of naked power; contained in it, quite consciously and intentionally, is the vision of a boot crashing down on a face.

“Its ugliness is part of its essence, for what it is saying is ‘Yes, I am ugly, and you daren’t laugh at me’, like the bully who makes faces at his victim.

“Why is the goose-step not used in England?

“There are, heaven knows, plenty of army officers who would be only too glad to introduce some such thing.

“It is not used because the people in the street would laugh.

“Beyond a certain point, military display is only possible in countries where the common people dare not laugh at the army.”

So: to adapt Orwell: extremism is only possible in countries where the people dare not laugh at extremism.

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(From a post originally posted here.)

Why have the Conservatives not published their “Bill of Rights” proposals?

Last week the Conservative party sent to the press a press release and a proposals paper on their envisaged “Bill of Rights” which is to replace the Human Rights Act 1998.

I published the press release here.  The legal blogger Carl Gardner published the policy paper here (and it was also published on a few news sites).

 

But the curious thing is that the Conservatives did not publish the press release or policy paper.  It seems that they sent their proposals, which would affect the fundamental rights of all citizens, to their contacts in the press.  Left to the Conservatives, the proposals were not to be published so that that public could read them unless a media outlet chose to publish the proposals.

What the Conservatives should have done, of course, is publish the proposals on their website, for consultation or comment.  After all, these are important proposals about a serious matter.

But, no.  The details of the proposals were for the Press only.  If the Press published the proposals paper then that was up to them.

And five days later, the Conservatives have still not published their proposals.

The only mention on their site is this pathetic page (“share the facts“!).  They also sent this (ironic) tweet (“Get the facts you need on our plans…“) linking to that utterly non-informative page.

 

One can understand why the Conservatives would now not want to publish their legally illiterate, widely derided proposals; but they did not not know what the response would be at the time the proposals were announced and shared with the Press.

What this omission indicates is something different from simple embarrassment.

What this shows is that the Conservatives only see this as a media exercise, so as to generate politically advantageous coverage.

The Conservatives do not really want to know what you think about abolishing the Human Right Act and they do not want you to have access to their plans, independent of any media outlet; the Conservatives instead care more about what the Press thinks and what the Press will tell you to think.

In essence, it tells you everything about the Conservatives’ contempt for citizens that their “Bill of Rights” proposals were intended only for the Press, and not for citizens to be able to see for themselves.

 

 

UPDATE

Just after I published this post, this happened – the Tories inserted a link on their website and dishonestly made out it had been there all along.

 

 

_______________________________

No rights without responsibilities?

A common assertion – almost a slogan – in discussions about rights is that there should be “no rights without responsibilities”.

It has a superficial attraction as a proposition; but to those who say this I have one question:

What responsibilities must we fulfil in return for our right not to be tortured?

_____________

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_______________________________________________________

What to read on the Tory proposals for a “Bill of Rights”

This will be an updated round-up of useful links on the Tory proposals for a “Bill of Rights” to replace the Human Rights Act 1998 (the “Act”).  The Act gives effect in UK law to the European Convention on Human Rights (“ECHR”).

New additions are marked [ADD….].

 

Key materials

The Human Rights Act 1998 (which is quite short and readable), with the relevant ECHR rights at schedule 1.

The Conservative policy paper, which was accompanied by a press release.

Council of Europe statement on the proposals.

 

Defences

Legal commentary

There has so far been no detailed legal commentary in support of the proposals.

 

Journalism

There are so far few “non-legal” defences of the proposals with any substance – most repeat the Conservative Party’s press release.

Conservative MEP and journalist Dan Hannan’s post is the best defence so far.

[ADD – this is an engaging argument in favour of the principle of a domestic Bill of Rights by Guglielmo Verdirame at the Spectator.]

 

Critiques

Legal commentary

The starting point for discussion of any attack on the Act and ECHR is always the late Lord Bingham’s important 2009 speech.

 

A legal opinion by two QCs –  “In our view those proposals are wholly unworkable, legally contradictory and inherently inconsistent.”

Carl Gardner’s (1) annotations to the policy paper and (2) his detailed critique – “…the noise and drama of the policy isn’t backed up by its substance. If the acid test is whether the plan would prevent another Abu Qatada or prison votes row – then it fails”.

Analysis by Dr Mark Elliott of Cambridge University - “the present proposals…fail adequately to engage with fundamental aspects of our present constitutional architecture and are built upon a misleading analysis of the legal context”.

Angela Patrick at the UK Human Rights Blog: Incoherent, incomplete and disrespectful: The Conservative plans for human rights“The proposals are incoherent in their consideration of domestic law, incomplete in their engagement with the devolved constitution and disrespectful to the UK’s commitments in international law.”

Critique by Isabella Sankey of the campaigning group Liberty – “The proposals are legally illiterate, politically provocative and designed to put us on a collision course with the Court of Human Rights”.

Guardian report on the reaction to the proposals, including quotations containing the severe criticism from Tory QCs Kenneth Clarke (Chris Grayling’s predecessor as Lord Chancellor) and Dominic Grieve (former Attorney-General).

 

Journalism

Nick Cohen at the Observer on the confused politics behind the proposals.

Peter Oborne at the Telegraph – Conservatives should think very carefully before ditching the ECHR –  “This is potentially a wretched moment in the history not just of the Conservative Party but also of Britain”.

[ADD: from 2009, this by Jesse Norman (now a Conservative MP) and Peter Oborne is magnificent: Churchill’s Legacy – the Conservative case for the Human Rights Act.]

Jessica Elgot at the Huffington Post – 10 Holes And Howlers In The New Tory Plans For Human Rights Law

Excellent Daily Mirror article with practical examples of what the Act “has done for us”.

Joshua Rozenberg at the Guardian – “Tory plans for European human rights convention will take UK back 50 years”

Guardian editorial - “a confused and dangerous jumble of political prejudice and legislative foolishness”.

Jonathan Freedland at the Guardian“Scrapping human rights law is an act of displaced fury”.

 

[ADD – a good survey article at the Legal Gap by Oliver Carter.]

[ADD - a family solicitor’s view, by David Burrows.]

 

 

 

 

 

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Exclusive: Tory proposals for “Bill of Rights”

 This will be announced tomorrow.  The text below was provided to me in circumstances where I was not bound by the “embargo”. It is in the public interest for this to be published as soon as possible and for these proposals to be subject to open and wide discussion, including expert analysis.  I apologise to any journalists whose copy was adversely affected by my disclosure; my intention was not to “scoop” any rival.  For completeness, I derive no commercial or financial benefit from this blog (there are not even adverts!).

 

European Court of Human Rights will lose its power to order change in Britain.

A majority Conservative Government will scrap Labour’s Human Rights Act, and will end the ability of the European Court of Human Rights to order changes to British laws.  Today the Conservatives are publishing a strategy paper which sets out how that will be achieved.

At the heart of the reform will be a new British Bill of Rights and Responsibilities that will restore common sense to the application of human rights in the UK. A draft of the Bill will be published for consultation before Christmas. Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using human rights to prevent deportation. It will make it clear that people have clear responsibilities to society, and that there is a proper balance between rights and responsibilities in British law.

The Bill will remain faithful to the basic principles of human rights which the United Kingdom signed up to in the original European Human Rights Convention, but it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of society as a whole.

The new measure will:

  •  Repeal Labour’s 1998 Human Rights Act.
  •  Break the formal link between British courts and the European Court of Human Rights. In future Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg. This will make our Supreme Court the ultimate arbiter of human rights matters in the UK.
  •  End the ability of the European Court to require the UK to change British laws. Every judgement against the UK will be treated as advisory and will have to be approved by Parliament if it is to lead to a change in our laws.
  •  Define much more clearly when and how Human Rights laws in the UK are to be applied. This will end the ability of the Courts to decide unilaterally to apply Human Rights laws to whole new areas of public life.
  •  Limit the use of Human Rights laws to the most serious cases. They will no longer apply in trivial cases.
  •  Balance rights and responsibilities. People who do not fulfil their responsibilities in society should not be able to claim so-called “qualified rights” in their defence in a court of law.
  •  Ensure that those who pose a national security risk to this country or have entered it illegally cannot rely on questionable human rights claims to prevent their deportation.

 

The plan provides a proper balance between the rights of citizens and their responsibilities in our society, and in particular to limit the ability of those who threaten British citizens or society to use human rights laws to protect their interests at the expense of the victims or potential victims.

It will protect basic rights, like the right to a fair trial, and the right to life, which are an essential part of a modern democratic society.

 

Examples of how the new law will be different include:

 

  •  Terrorists and serious criminals who pose a significant threat to the security and safety of UK citizens would lose their right to stay here under Human Rights Laws.
  •  People who commit serious crimes in the UK, and in doing so infringe upon the basic rights of others, should lose their right to claim the right to stay here under the right to family life. So for example, a foreign criminal, guilty of causing death by dangerous driving and so taking away the rights of another citizen, would not be able to claim family rights to stay in the UK.
  •  No one would be able to claim human rights to allow them to step outside the law that applies to all other citizens, for example a group of travellers claiming the right to family life to breach planning laws.
  •  The right to family life would be much more limited in scope. For example an illegal immigrant would not be able to claim the right to family life to stay in the UK because he had fathered children here when he is playing no active part in the upbringing of those children.
  •   Limit the reach of human rights cases to the UK, so that British Armed forces overseas are not subject to persistent human rights claims that undermine their ability to do their job and keep us safe.

 

The move follows widespread debate about the role of the European Court of Human Rights in UK matters and whether it has the right to overrule Parliament. Earlier this week the former Lord Chief Justice Lord Judge warned that “it would be a negation of the democratic process for Members of Parliament to be obliged to vote for a measure with which they disagree” if ordered to do so by Strasbourg.  He also states “ultimate sovereignty does not rest with the courts, but with Parliament.  What is more, in our arrangements, although Parliament is expected to respect a Treaty obligation, it is not bound to do so”.

Elsewhere in his article he says: “In my view in any country which embraces the principle of democracy, and certainly in the United Kingdom, ultimate authority over constitutional and societal questions is not vested in a body of judges, however wise and distinguished, and even if the system for their appointment is beyond criticism.” His move followed an assertion by the President of the Court that they had the right to overrule MPs.

The strategy paper and draft Bill have been drawn up by leading Conservative QCs following a series of extensive discussions with lawyers, academics and Parliamentarians.

Justice Secretary Chris Grayling said:

“We cannot go on with a situation where crucial decisions about how this country is run and how we protect our citizens are taken by the European Court of Human Rights and not by our Parliament and our own courts. We also have to be much clearer about when human rights laws should be used, and that rights have to be balanced with responsibilities. People in this country are fed up with human rights being used as an excuse for unacceptable behaviour.

 

“We will always stand against real human rights abuses, and political persecution. But these plans will make sure that we put Britain first and restore common sense to human rights in this country.”

 

The Rt Hon Lord Howard of Lympne, CH, QC said:

“The argument is not about human rights, to which we all subscribe.   No, the argument today is whether arrangements such as the European Court of Human Rights and the Human Rights Act actually help to protect such rights or, by the way in which they have operated, bring the concept into disrepute.

“Certainly, the way in which the Convention on Human Rights has been interpreted is far removed from its founders’ intentions.

“We are simply restoring parliamentary sovereignty, and some much needed common sense, to our human rights laws.”

 

What you need to know about the Human Rights Act and ECHR

Today, at the Conservative Party Conference, the Home Secretary and the Justice Secretary are scheduled to speak.  This means that it is likely that, yet again, human rights law will be attacked.

 

So as to help assess the soundness of these attacks, you may find the following points helpful.

 

First, many of the alarmist examples of human rights abuses turn out to be, well, false.  For example, in 2011 the Home Secretary stood up at Tory Conference and said:

The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.”

But she had made it up.

As recently as this week, a newspaper has had to correct another shock human rights claim.

So to begin with, just be careful: what you are told by politicians and the media about human rights cases may turn out to be factually incorrect. Don’t just nod-along in horror.

 

Second, the attacks on the Human Rights Act and the European Convention of Human Rights (ECHR) invariably tend to be vague.

As a general rule, the more hostile a person is to the Act and the ECHR, the less they tend to know what the Act and the ECHR actually contain.  This is because both the Act and the ECHR have become nothing more than bogey-men to many politicians and pundits.

A better approach is to read this magnificent speech by the late Lord Bingham – and ask yourself his key questions:

Which of these rights, I ask, would we wish to discard?

Are any of them trivial, superfluous, unnecessary?

Indeed, as has been observed before, one of the shortest conversation one can have in politics is to ask an opponent of the Act and the ECHR exactly which provisions they oppose.  (The best answer, if any, one will get is “all of it” – which usually means the person has not read any of it.)

The Act itself is short and readable. Take a few moments to read it, and ask yourself what parts of it seem wrong to you.

And look carefully at which parts of the Act its opponents specifically attack.

You will see that the Act’s opponents avoid engaging on any level of detail.

 

Third, and this is a point about the current obsession of Tory ministers with attacking human rights law, there is actually nothing “un-Tory” about the ECHR.

The ECHR was co-written by the Tory politicians of the time, notably Maxwell-Fyfe.  One of its great supporters was Winston Churchill himself, who spoke in favour in his 1948 speech at The Hague of

the idea of a Charter of Human Rights, guarded by freedom and sustained by law. 

Even wise Tories of today are in favour of the ECHR, for example see this by Jesse Norman MP and Peter Oborne, and see also the recent comments by former Attorney-General Dominic Grieve.

One can only hope that as anti-ECHR MPs defect to UKIP, the Tories will revert to their un-ideological approach to policy which made the ECHR possible in the first place.

(In the longer term, perhaps, hostility to human rights law may turn out to be a bug in, and not a feature of, modern Toryism.)

 

Fourth, it is important to note that the whole purpose of human rights law is, from time to time, to frustrate governments and others with power.

Human rights law which allows politicians to do what they would have done anyway is not meaningfully human rights law at all.

Of course, government do not like human rights law – they also dislike legal aid and judicial review – as it empowers the individual to stand up to the State.

So the protests of senior politicians (of all parties) about human rights law should never be taken at face value.

 

Finally, it is a good thing that human rights law is up for debate.

But a good debate needs to be an informed debate.  The problem with the current attacks on the Act and the ECHR is that they are ill-informed, and then (sadly) uncritically repeated in parts of the media.

This lack of an informed debate is not inevitable, and it is open for everyone to inform their view and make their own minds up on whether today’s attacks on the Act and the ECHR add up, and whether the Home Secretary and the Justice Secretary answer Lord Bingham’s crucial questions.

In particular, which of the rights do we want to discard?

 

 

 

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Is it a criminal offence to watch a video?

The Metropolitan Police put out an alarmist statement this week that, in certain circumstances, merely viewing a video could constitute a criminal offence under terrorist legislation.

 

This is, of course, false.

 

There is no such terrorism offence for viewing a video, and the Met could not substantiate their claim when challenged.  It seems to me that the Met press office simply invented a “viewing” offence.

 

My full post on the Met’s alarmist and false statement is at the FT (free to access, but registration required).  The conclusion of my FT post (which should be read in full for context) reads:

It would appear that the [Met] press office, which had produced and promoted the bold statement that that “viewing” a video could itself be a criminal act under terrorism legislation, could not substantiate it when challenged.

This was worrying. People need reliable and accurate public information, and they have the right to expect it from the well-funded PR departments of UK police forces. If a police force tells people something is against the law then it should be able to instantly say on demand what that law is. The law should not be made up by press officers as they go along, especially in respect of matters such as terrorism where confidence in law enforcement agencies is crucial.

It cannot be the role of any police force to publish alarmist and false statements about the criminal law.

 

There is also a detailed storify-style timeline of my tweets recording my conversation with the Met press office.

 

Even though what the Met said was not true, almost every news media outlet published the assertion without challenging it.  Not really their fault, though: one would think that the press office of Scotland Yard could be relied upon to correctly state the criminal law of the land.