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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Dear Mr Gove, bad Ministry of Justice policy making has not gone away

4th April 2016

Another policy failure of the Ministry of Justice becomes apparent: over at the Law Society Gazette, John Hyde has detailed how the MoJ has collected only a small proportion of the criminal courts charge.

The charge has now been terminated; but the underlying problem remains: the MoJ is simply not any good at policy making and policy implementation.

The MoJ adopts a policy, usually without assessing evidence or even thinking things through, and it then “presses on” with the policy regardless of onlookers pointing out that, well, the policy will not work.

The policy is then eventually reversed.

This is not just a one-off; the cycle of policy adoption-failure-reversal has been a feature of the MoJ for as long as one can remember.

Michael Gove has been Justice Secretary and Lord Chancellor for less than a year. He has started well as the ministerial head of the department, and he has been savvy enough to work out ways of ending most of his predecessors more idiotic policies.

To go by the political news, however, it seems like Gove is now becoming preoccupied with the upcoming “Brexit” referendum vote.

The worry is that Gove somehow thinks the problem of crap MoJ policy making has been solved. and that he is thereby free to concentrate on other political matters.

The problem has not been solved; as not being any good at policy making and implementation (whilst arrogantly ignoring anyone pointing this out) is the natural state of the MoJ.

Without a careful eye, bad policy making will return.

And, if so, Gove will no longer have the luxury of focusing on Breixt or even the Tory leadership succession.

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British Bill of Rights: Today at the Ministry of Justice

15th February 2016

There is speculation that the long-awaited proposals for a British Bill of Rights will be published this week.

Let’s see what is happening today at the Ministry of Justice:

“Welcome everyone, please sit so you can see this whiteboard.  I am allocating you one right each. We will get the Bill of Rights proposal done today.”

Silence.

“If we do the rights before lunch, that means we have all afternoon to do all the exceptions. Let’s get going.  We will brainstorm and workshop this.”

“Brainstorm and workshop are not verbs.”

“Sorry, Lord Chancellor.”

The brainstorm and workshop begins.

“Right to life…hmmm”

“Privacy, what do we mean by “privacy”?”

“Freedom of…what?”

“Errrrrr, fair trials means…”

It is not going well.

“Come on, it cannot be that difficult to draft a “Bill of Rights”. We have been promising it since 2006.”

The whiteboard remains blank.

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Law and policy round-up: Do Ministers know best?

10th February 2016

This is today’s law and policy round-up.

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Ministers really do know best, it would seem.

A couple of days ago the Attorney-General – whose office is still narked at losing the Evans and Prince of Wales letter case [2015] UKSC 21 – gave a speech where he explained why ministers were better guardians of the public interest than judges.

And yesterday at a parliamentary committee, Justice Minister Shailesh Vara responded defiantly to powerful recent criticism by the Master of the Rolls on the shoddy MoJ research into the effect of court fees.

But meanwhile, back in the real world, the Intelligence and Security Select Committee published a scathing report on how Ministers did not have any clue why they were asking for the surveillance powers in the new Investigatory Powers Bill.

It would appear Ministers do not know best, after all.

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Law and policy round-up: three points about Cameron’s prisons speech

9th February 2016

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Prisons policy

Yesterday was a busy and perhaps significant day for prisons policy.

The Prime Minister gave a speech devoted to the subject.  The speech was even trailed with two government announcements here and (on treatment of pregnant women in prison) here.

Frances Crook of the Howard League gave the speech a cautious welcome and Ellie Dunt, also of the Howard League, correctly observed that the most significant thing about the speech was that the Prime Minister was giving it.

There are three things worth noting about the speech and what may be behind it.

First, prisons are expensive even if “law and order” rhetoric is cheap. Wise politicians realise this and know that the current approach to prisons policy is financially unsustainable, regardless of what lines voters and tabloids clap along with.  The current policy also makes no real sense from a crime prevention perspective and is best seen as one devised by a mischievous demon.

Second, there is a move in right wing thought against custodial sentences as the default punishment for crime, especially in the United States.  (I wrote about this in 2013 at the FT.)  This development in right wing thought may be having an influence on Michael Gove.

Third, if such a speech is indeed the political price Micheal Gove has extracted from David Cameron for support on the EU referendum issue, then it is a good bargain.

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Law and policy round-up: British Bill of Rights, Assange.

8th February 2016

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Here are some interesting links on recent news involving law and policy.

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“British Bill of Rights”

Last week the Lord Chancellor and Justice Secretary Michael Gove appeared before a House of Lords committee to discuss the government’s proposals for repeal of the Human Rights Act and a “British Bill of Rights”.

It soon became clear that the government still has no clear idea what to do.  The “British Bill of Rights” continues to be a grand title on an otherwise blank piece of paper on a desk somewhere in the Ministry of Justice.  The “seven hurdles” for repeal of the Human Rights Act which I posited last May still stand and have not been overcome.

You can watch the appearance here and the transcript of the hearing is here.

A great report of the hearing is by my FT colleague Kate Allen and RightsInfo has a useful analysis.

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Assange

A rather strange and unconvincing “opinion” about arbitrary detention and Julian Assange was released last week by a UN working group.

You can read the report here, though the eight paragraph dissent at the end says all that should be said.

On this report, the best commentary so far has been by Joshua Rozenberg at the Guardian and Carl Gardner at Head of Legal.

My own short “explainer” piece is at the end of this FT news report.

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