Law and policy round-up: Theresa May’s call for the UK to leave the ECHR

26th April 2016

Human Rights and ECHR

Theresa May, the Home Secretary, gave a speech yesterday which included a call for the United Kingdom to leave the European Convention on Human Rights.

The speech is set out in full at ConservativeHome, and (as it appears to be a statement on behalf of her department) it is also now on the Home Office site.

The statement is, of course, more about the politics of Brexit and succession to the Tory leadership than anything serious about law and policy.  It is a sort of counter-balance to her position on the UK remaining in the European Union.

For a number of reasons, not least that the Good Friday agreement requires the ECHR to have continual legal effect in Northern Ireland, this demand will go nowhere.

(I set out the seven hurdles for repeal of the Human Rights Act and for UK leaving the ECHR – including the problems presented by Northern Ireland and Scottish devolution –  in a post here last May.)

Given the office Theresa May holds, it is worth taking a moment to look at the Northern Ireland point, for the UK to leave the ECHR would require the UK to reopen and renegotiate the Good Friday agreement.

Any change to the agreement would, in turn, require fresh referendums in Northern Ireland and the Republic of Ireland.

It would also risk alienating the nationalists who accepted the Police Service of Northern Ireland only as long as it was subject to the ECHR.

It is, in all, a remarkable demand for a serving Home Secretary to make, and it is also extraordinary for the Home Office to post the statement on their own site as if it is government policy – and here it should be noted that policy on the Human Rights Act is (supposedly) under the Ministry of Justice, and not the Home Office.

This does not seem thought through. One suspects the Home Secretary does not realise (or does not care) about the implications of the UK leaving the ECHR – perhaps her desire to send a political signal to Tory back-benchers and the popular media is too great.

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A word-switch, not a phrase-insertion: “back of the line” is an Obama rhetorical staple

23rd April 2016

The contention is being (seriously) made that President Obama’s use of “back of the queue” in a speech about Brexit shows that the phrase was inserted by his UK hosts.  This contention rests on “queue” not being a word Americans use. They use the word “line” instead.

Politicians, like all of us, tend to use rhetorical staples. And a quick search of Obama’s public statements over the last few years shows that “back of the line” is indeed one of his rhetorical staples. He seems to have used it nine times since 2013.

And not only has he used it in formal speeches, but in unscripted press conferences. It is a phrase he readily uses, and if you look at the examples, he uses it to make similar points to the one being advanced in his Brexit comments.

So all that needs to be explained is not the insertion of the phrase, but a switch of a word.

It is a word he is recorded as using anyway.  The word switch may well be his own, or from his advisors or script writers. Who knows.

But all that needs any special explanation is the word, and not the phrase.

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If you value this this blog and its free content, please do two things.

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FT post on the Panama Papers: public interest disclosure v the right to private legal advice

6th April 2016

I have posted over at FT.com on the Panama Papers and whether their disclosure raises concerns about the right to private legal professional advice.  The post is here.

Here are a couple of excerpts:
Panama2

Panama

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Regular blogging at Jack of Kent is made possible by the kind sponsorship of Hammicks Legal Information Services.  

If you value this this blog and its free content, please do two things.

First, click on this link to Hammicks and have a browse.

Second, please subscribe for alerts for my new posts at Jack of Kent and the FT, and anywhere else.  Just submit your email address in the “Subscribe” box on this page.  Twitter and other social media platforms may not always be around – and so by subscribing you will get alerts for my posts.

 

Being neutral about Brexit

20th February 2016

I used to be a Eurosceptic and in large part I remain one; I am now just as wary of the bullshit from Westminster and Whitehall as I ever was of the bullshit from Brussels.

There is a lot for a small “l” liberal to dislike about the European Union.

Whatever “internationalist” credentials it has, they are off-set by its protectionalism against the rest of the world.  Its decision-making and policy-making have no transparency, and nobody seems ever responsible for anything. There is nothing “democratic” in any meaningful sense about any part of the EU which has genuine power. [**]

And, as I set out in the New Statesman in 2012, the EU has the habit of taking the credit for what has been achieved by other international arrangements, such as NATO and the ECHR.

It has always seemed strange that the big “l” and big “d” Liberal Democrats ever found anything liberal or democratic about the EU.  Perhaps it is all behind the scenes (which rather defeats the point).

But those (supposedly) in favour of UK “sovereignty” are often full of bullshit as well.

The current prime minister promotes the sovereignty of parliament whilst, in practice, encouraging departments to push through as much legislation as possible (and certainly not just EU-related legislation) as statutory instruments and other secondary legislation, which will rarely have any proper scrutiny.

In the UK, especially in England, most legislation is executive-driven, and at speed; the parliamentary stages are as much ceremonial window-dressing as the royal assent.  Even legislation which affects fundamental rights is just forced through, and only then if officials cannot get away without legislating.

And it is next-to-impossible to shift the public policy of any government department. Whoever wins the general election, the same senior civil servants (and those who influence them and have access to them) remain.  Things rarely change, as ministers come and go.

It is all an illiberal and undemocratic mess.

The only sensible response, it seems to me, is to strengthen the rights of the individual against the “state” – whether it be domestic or EU – both in being able to challenge decisions and laws in the courts, and to have access to a transparent policy-making process.

And so it is difficult to care ultimately about Brexit.  Both sides are alarmist, and both can pick out the weak spots in the other side’s positions whilst being blind to their own.

This is why this blog is neutral – as long as UK remains part of NATO and the ECHR.

It is not that I don’t know or care about UK and EU law and policy – I follow it all carefully and even advise on both domestic and EU law. I just cannot see what real difference the result will be from a liberal perspective. The illiberal – and undemocratic – misuses of public power will remain.

And to those in favour of Brexit who say ‘at least it will be “our” politicians who will make the decisions, and we can turn them out’, I reluctantly reply that this may be mere sentimentality. One can wish this is true, but sadly it is not.

In practice, policy-making and law-making in Whitehall and Westminster is just as illiberal – and undemocratic – as it is in Brussels and, if you take liberalism seriously, there is nothing to choose between them.

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**An earlier version of this post made a statement about the EU’s accounts not being signed-off by auditors; I have been told this is a “zombie fact” and so I have deleted it whilst I look at it again.

FT post on Home Office, Saudi Arabia and the need for a ‘safe space’

13th January 2016

My latest FT post is now up, on the the Home Office using the jargon of “safe spaces” so as to avoid disclosing the nature of its relationship with the Saudi internal ministry.

FTHO story

SafeSpace

And this glorious comment:

CommentoftheDay

You can read the full post here.

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Two questions about “something must be done” following the Paris attacks

17th November 2015

In the aftermath of the Paris atrocities there are demands for action: dropping bombs and air-strikes, shoot-to-kill policies, more use of special interrogation techniques (ie, torture), less freedom of movement, more intrusion and less privacy, more powers for the security services, and so on.

What seems to be a feature of many of these demands is that there is no attempt to explain the supposed cause-and-effect. It is almost as if the merit of the proposals is self-evident, a sign of virility: something bad has happened, and so something must be done in return.

But each such demand raises two issues: one of practicality, and one of principle. That is: would the proposal actually help, and does the proposal conflict with the supposed principles, and way of life, we are presumably seeking to defend.

In terms of practice: just doing “something” does not mean you are doing the right thing.  It may make no difference, or it may make things worse.  In terms of dealing with terrorism, one false move can cause problems for a generation.  The history of dealing with the terrorist problems in Northern Ireland is packed with examples of things being “done” which just caused greater difficulties later on.

This is not to suggest doing nothing; just that what needs to be done needs to be thought-through.

So: will what is being called for actually work and, if so, how?

In terms of principle: there appears to be a genuine risk that we could end up undermining – even subverting – the very principles of personal autonomy, the rule of law and freedom of expression which the West can and should be defending and asserting.

These liberal principles are not absolute, and they can be interfered with for reasons of the greater good; but they should not be discarded casually either. The point is whether any serious thought is being put into the required balancing exercise.

So: how will what is being called for interfere with the fundamental values of civilization we are seeking to protect and, if so, has the right balance really been struck?

It sometimes seems that some of those wanting to drop bombs and order air-strikes, to deploy shoot-to-kill policies and to use more torture, to limit freedom of movement, and to intrude more and to give more powers for the security services, do not need a reason for their demands, and still less do they require any evidence as to the efficacy of what they propose; they just want a pretext.

Asking about whether a proposed action is really practical, and about whether a proposed action needlessly interferes with civilized values, is not a check to things being “done”.  It is not an excuse for doing nothing.

Answering such questions instead will tend to mean that the right things are done:  things that work, and things which mean liberal values are being taken seriously.

In essence: “something can be done” is always better than “something must be done”.

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The “Carlile Doctrine”

15th November 2015

Lord Carlile has used the atrocities two days ago in Paris as the basis for calling for proposed new UK surveillance laws to be “expedited”.

It is, of course, far too early to say whether anything about the French attacks warrants any legal change in UK.

For example, France already has more extensive surveillance laws than UK, and the atrocities still happened.

This does not matter to Lord Carlile and the rest of the security lobby. They have a pretext for demanding more legal powers for the security services, and so they do.

We should now have a name for this opportunistic approach, and perhaps a good name for it would be the Carlile Doctrine:

Any act of terrorism will justify more legal powers for security forces, regardless of what it is.

 

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The new Investigatory Powers Bill and the politics of ‘nodding along’

2nd November 2015

Today I have done a quick post at the FT on the Home Office’s PR exercise this week on the new Investigatory Powers Bill.

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The thinly veiled threats of the Saudi Ambassador

27th October 2015

When a genuinely extraordinary political decision is taken the consequences can often be telling.

Such decisions are not those usual ones that are predetermined or stage-managed, as are the stuff of any political system under the public gaze.  They are instead the decisions that suddenly disturb and disrupt the settled practices of those with power; they are decisions the effects of which are often worth watching carefully.

Earlier this month, the UK prime minister David Cameron ordered that the Ministry of Justice should pull out of a bid to provide training services to the prisons of Saudi Arabia.

The exact basis of that decision is not yet clear.

But it was not one which the Saudis and their allies in the UK Foreign and Commonwealth Office (FCO) were expecting the UK government to make; indeed, the FCO had until then managed to oblige the MoJ to continue with the bid even though the Justice Secretary, Michael Gove, was against it.

The Saudis are not happy with this decision, or about its significance.

The contract proposal itself was not big in the global scheme of things — just under £6m; it was more that the usual tactic of Saudis threatening to not “co-operate” unless they got their way did not work for once. It seemed as if a bluff was being called. The FCO had not wanted to upset the Saudis, but this supposed “wider” interest of the government was trumped by the prime minister effecting a quick fix to a cabinet split that was about to be exploited by the media and the opposition.

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The Saudis have now reacted publicly.

In Monday’s Daily Telegraph is a remarkable article from the Saudi ambassador in London, Mohammed bin Nawaf bin Abdulaziz. The ambassador’s piece is worrying — and revealing.

The article warns of the adverse consequences of the UK treating the Saudis with disrespect.

But it does so in a clumsy and discreditably strident manner.

The ambassador’s overall tone is evocative of some international protection racketeer telling the UK what a nice little country we have here, and wouldn’t it be a shame if “co-operation” ended.

One wonders if anyone at the Saudi embassy in London had the wit or sense to tell the ambassador to desist from publishing such a blatant exercise in implicit intimidation. Perhaps somebody did, and the first draft was even worse. Who knows. What is clear, however, is that Saudis do not react well to being told that they are not going to get their way.

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The ambassador’s article bears close attention, both for what it says and what it does not say.

For example, there are general threats with only the thinnest of veils:

“…an alarming change…potentially serious repercussions that could damage the mutually beneficial strategic partnership…a strong alliance [which up] until a few weeks ago, I would have said it had never been stronger”.

Then the threats become more specific. First, in respect of commercial matters:

“The Kingdom’s contribution to Britain’s security and economy provides the foundations on which the bilateral relations between our two countries are built, allowing trade, cultural exchanges and military cooperation to flourish. Saudi Arabia ultimately provides over 50,000 British families in the UK and the Kingdom with livelihoods, thanks to commercial contracts worth tens of billions of pounds. Saudis also have an estimated £90 billion in private business investments in the UK.

[…]
If the extensive trade links between the two countries are going to be subordinate to certain political ideologies, then this vital commercial exchange is going to be at risk.”

(On this point, also see the FT’s news report yesterday of the threat to the Typhoon contract.)

And then in terms of British lives and limbs:

“…the Kingdom remains an invaluable source of intelligence on the activities of terrorist groups. Information from Saudi intelligence in 2010 resulted in a major counter-terrorism success by scuttling an al-Qaeda attempt to blow up a cargo airliner over Britain. In a recent interview, David Cameron confirmed the importance of our contribution when he declared: “Since I have been Prime Minister a piece of information that we have been given by (Saudi Arabia) has saved potentially hundreds of lives here in Britain.” Given information to which I am privy, that number is, in fact, in the thousands.”

The message is plain: the UK had better be careful.

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Here it is important to remember what the prime minister’s decision was about.

It was a decision that a relatively small UK government department should not bid for overseas work but should instead concentrate on domestic matters.

It is the sort of issue that any sovereign government should be able to make in respect of its own public services.

But the ambassador has such a distorted a view of national sovereignty that he misses the irony of him complaining that the UK does not respect Saudi Arabia as a sovereign state while saying that it was not open to the MoJ to drop a bid so that it concentrate on domestic activities in England and Wales.

The ambassador’s express criticism of the political approach of the UK’s new leader of the opposition also looks at odds with the insistence that the UK should not interfere with the internal affairs of another country.

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The ambassador’s article is telling in other ways.

The propensity of the Saudis to use barbaric physical punishments is blithely passed off as a local tradition and custom, as if tying someone to a pole and flogging them nearly to death is somehow comparable to having a pole on a village green for dancing around on May mornings.

The ambassador also appears not even to be properly informed as to the matter in hand. He states that the UK prison cancelled a consultancy contract with Saudi Arabia worth £5.9m. In fact, the contract was not yet in place. It had not been signed because the Saudis had not yet awarded the contract to the UK – even though the final bid had been in April and the Saudis had still not made their decision by October (the intention was that the contract was to have been awarded by July).

What was cancelled was not a contract, but a contract bid. But such details do not matter to the ambassador, even though he is mounting threats on the back of what he says has happened.

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Ever since the Saudis pressed the UK in 2006 to drop the fraud investigation of BAe (read the first 22 paragraphs of the House of Lords’ 2008 Corner House decision for a chilling account of this dreadful incident) it has been obvious to anyone who wants to see what the influence of the Saudis is over the UK state by holding the twin swords of commerce and intelligence close to our necks.

So used are the Saudis in routinely threatening that “co-operation” will be at risk that various UK bodies not directly connected with foreign affairs – the Home Office, the MoJ, the College of Policing, and even the Information Commissioner (as I set out in a post earlier this month) – are all too scared even to reveal minor details of the relationships, lest the Saudis retaliate.

Against this backdrop, the decision of the Prime Minister earlier this month has caused a jolt in UK-Saudi relations. It may well be that something substantial has changed; or it may be that the old practices will resume.

But what is new is that Saudi diplomats have now taken to the pages of the British press to display their displeasure, and to make explicit in the media what they want the UK to believe is at stake. To do this, however, does not indicate Saudi strength but insecurity; it means what was said behind closed doors is no longer sufficient.

The blustering and bullying is now in the public square, and this cannot be undone; everyone can see the Saudis for what they are.

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FT post on why the reference to ‘international law’ in the UK’s Ministerial Code matters

26th October 2015

Following on from the story that was broken by my friend Nick Cohen on the deletion of regard to “international law” from the Ministerial Code, and also in response to the extraordinary public intervention from the former Treasury Solicitor, I have done a brief post over at the FT.

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