Dominic Raab: leave gangsters to kill and be killed

It’s a bleak Raabian vision of an apocalyptic post-ECHR world in which gangsters are able to murder one another, scattering their rivals’ bodies around Britain’s cities while the police ignore them because they have better things to do. And apparently, the UK Justice Secretary is all in favour of it.

Here’s Dominic Raab’s logic: the European Convention on Human Rights  requires states to protect their citizens’ right to life (Article 2). The European Court of Human Rights in Strasbourg has ruled this requires, in some circumstances, proactive actions by state agents such as the police. British police are therefore running around to gangsters’ houses bearing warnings that other gangsters are planning to off them. Raab wants to spare the police this job so they can concentrate on rapes (an unfortunate choice on Raab’s part: there is also ECHR law on police not properly investigating rape – the John Worboys case: see below.)

Raab explained all this on Radio 4’s Today programme on 22 June,  the day he was introducing his “British Bill of Rights bill” (sic) to the House of Commons. He pointed to a 1998 ECHR case, Osman v UK, in which Ali Osman was shot dead and his son wounded. They weren’t gangsters, nor was the killer, who was a teacher with a disturbing fascination for the boy. The police had been made aware of “a series of clear warning signs” of the killer’s intention. The court was told no further attempt was made to find the man after an attempted arrest failed and he disappered – only to emerge and shoot Osman and his son.

How Boris Johnson’s partygate win reduces Keir Starmer’s beergate woes

Note: Durham police have now (8 July) accepted Keir Starmer and Angela Rayner have no case to answer on “beergate” – as suggested below
It’s an enigma wrapped in a mystery: how could the London Metropolitan Police possibly have decided the UK Prime Minister Boris Johnson attended a party on 13 November 2020 that was illegal under Covid regulations yet do so wholly lawfully? The regulations, after all, are clear:

8.—(1) No person may participate in a gathering which—
(a) consists of two or more people, and
(b) takes place indoors (including indoors within a private dwelling).

(The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020)

There were exceptions in Reg. 11 for gatherings “reasonably necessary” for “work purposes” – but no exemption for work parties nor for a prime minister who clearly “participated” in the gathering (he gave a speech, raised a glass, drank a little wine before heading off to his flat to partake of a doubtless rather classier wind-down bottle of something after a hard day’s work).

The police failure to act left many baffled, including the barrister Adam Wagner, who knows a thing or two about Covid regulations. But there have been sufficient clues to understand their thinking and, potentially, to suggest that the Labour leader Keir Starmer has an even better case to be let off the hook for his own apparent “beergate” infraction in Durham.

So-called Article 61 of Magna Carta – and the so-called right to rebel

Protesters who occupied Edinburgh Castle have claimed they are doing it under “Article 61” of Magna Carta – in reality Chapter 61. This, they would presumably argue, offers a “right to rebellion” against the monarch. Of course that is nonsense, not least because Chapter 61 was an agreement between King John and his magnates – the barons whose rebellion led to the signing (or rather sealing) of Magna Carta in 1215. It was an acceptance that those barons could rebel – or temporarily abandon their fealty to the monarch – but return to the fold without loss of their feudal estates once the issue at hand was resolved. It was not a carte blanche for hoi polloi to rise up and seize royal castles.

The CRED report and Tory ‘Marxism’: Time to bring in S1 of the Equality Act

The thing about inviting Marxists (or “post-Marxists”?) into the heart of the UK Government, if you are a right-wing prime minister like Boris Johnson, is that they sometimes come with ideas you don’t understand with implications you can’t fathom – and hence policies you are unlikely to want to implement. This is very much the case with the No 10 report from the Commission on Race and Ethnic Disparities (CRED). Its emphasis was on the largely socio-economic basis of such disparities, ditching decades of liberal-left post-structuralist identity politics and notions of institutional racism for a more orthodox materialist historicism. Boris must have been quite baffled (though how would we tell?).

As it happens, if the government does actually want to do something about disparities that are embedded in socio-economic deprivation rather than racism, it has one quick fix that would actually do something: bring into force Part 1 of the Equality Act 2010.

This Act was largely a tidying up operation by the Gordon Brown government to bring equality legislation into one handy place.  It is full of provisions to deal with institutional racism but it also had something new in Part 1, Section 1:

Public sector duty regarding socio-economic inequalities
(1) An authority to which this section applies must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.

This is bang on the button as far as the disparity report goes, with its concern about Britain as “a world where your talent and potential contribution are limited by which postcode you live in, your race or your socio-economic background”.

The CRED report, for example, shows its socio-economic class-based analysis by quoting with approval research that suggests Black Caribbean children perform less well than Black African children at school (and hence in life) in part because the more recent African immigrants are from a higher socio-economic group than the second or third generation of Caribbeans who came over specifically for working class jobs. Similarly those Indians who have migrated to Britain had a higher socio-economic status allowing them to flourish. (Report pp 67-8)

Begum judgment: a dilemma for liberals

How awkward! For Lisa Nandy, for Labour MPs in general only just getting used to donning the Union Jack waistcoat, and for all liberal constitutionalists who are believers in the rule of law and defenders of judges from allegations of “treachery” and “activism”.

The Begum Supreme Court ruling that “Jihadi bride” Shamima Begum cannot return to Britain to fight for her British citizenship has put them in a very contorted position. These, after all, are the people who believe it is right that judges stand in judgment over the executive; that they are a bulwark against oppressive government actions. That, after all, is the “rule of law”.

Yet here is a case where the highest court in the land supported the Government against the individual, backed the Goliath against a tragic single mother seeking to assert her rights, declared, indeed, that the courts should not intervene in such government policymaking.

The position of Nandy, the shadow Foreign Secretary, epitomises the agony on the liberal left. In the past she has, in principle, backed Begum’s return, saying (according to this Labour site last July): “The law was on the side of bringing her back to the UK, because it’s not legal to deny someone a fair trial or to make them stateless.” Here, though, is what she said on BBC 4’s Any Questions in response to the Begum decision (with emphases added):

  “I suppose first of all to say we respect the court’s decision. The judgment that the Home Office put forward was that it would create national security risks for her to return to the UK to appeal against the decision to strip her of her citizenship. She wants to have that heard in the UK. The Home Office wants that to be heard remotely from the camp that she is currently in and the Supreme Court ruled with the Home Secretary essentially that this [her return] creates national security risks. We wouldn’t welcome the prospect of anyone returning to the UK who wishes us harm.”

Law Commission backs commonhold? It’s not that simple for leaseholders

The long-awaited report by the UK Law Commission, which was supposed to deal with the iniquities of Britain’s leasehold property system, is out. Badly put-upon leaseholders, particularly in a post-Grenfell Tower environment, were placing much hope in the commission recommending a system that removes freeholders and lets leaseholders administer their own blocks – commonhold.

But has the Law Commission really backed commonhold (where a block is owned by the people leasing the  flats in it rather than a possibly distant entity known as a freeholder) as a replacement for leasehold? It has set out the issues, proposed ways of making commonhold “work”, and is full of words that give the impression of a strong statement, but the reality is that it in effect concedes the matter will be a political decision. The Commission knew the Government wanted something on commonhold – but also knew it didn’t want to go all the way. The biggest omission is to do with whether commonhold should be the sole form of tenure for owning flats henceforth. The Law Commission hedges around the question.

The problem with leasehold (owning a flat on a lease for a period, often initially set at 99 years though some can be as much as 999 years) from the point of view of leaseholders is basically that the flat is a wasting asset. This means the lease has to be regularly extended ie extra years bought to keep it above the 80 years when costs of extension rise rapidly and it risks becoming unsaleable and unmortgageable (see this on marriage value). There is also ground rent and an unsatisfactory system of deciding on maintenance for the common parts and updating the fabric. The post-Grenfell situation is only the most egregious example of where this can go horribly wrong, with leaseholders vastly out of pocket. It’s a legal minefield and a lawyers’ field of gold.

Coronavirus crisis: just the time for an experiment in deregulating child safeguarding

Everyone agrees: the coronavirus lockdown is putting particular pressure on vulnerable children. They are more at risk of violence and abuse when confined to their own homes and less able to seek help. Only 5% of them are believed to be at school, where they have a right to go despite the lockdown.

So the Government will have put much thought into helping under-pressure local authorities and their social workers to have the emergency legal backing to perform their child safeguarding duties in these particularly challenging circumstances, right?

Wrong. In fact what has most exercised the Department for Education is launching an experiment to reduce or remove certain statutory local authority child safeguarding duties – using the coronavirus crisis as an excuse. Hence the  Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – a piece of secondary legislation published by the Government on 23 April in a Parliament of MPs scattered around a country on lockdown and passed into law the morning after.

The worry is that the Government has used coronavirus as a stalking horse for an experiment in what it has already been trying to do for some years despite Parliament’s opposition – producing a less regulated system of child safeguarding. The fear is that emergency legislation is actually crafted as a response to a longstanding Conservative bugbear – that councils should be relieved of safeguarding obligations – rather than a response to the Covid-19 emergency.

Can Boris Johnson defy a commons vote of no confidence?

For those British MPs wanting to stop a no-deal Brexit, the options are running out. Among  avenues apparently blocked, according to some, is a motion of no confidence in Boris Johnson’s government. The prime minister’s senior adviser, Dominic Cummings, has declared it is too late for such a motion to halt Brexit on 31 October. Even if he loses a motion of no confidence, Johnson can, according to Cummings, refuse to make way for a new Prime Minister and stay on until he decides to have a General Election – probably during or after Brexit on 31 October.

Meanwhile, the bad news for the ant-Brexit proponents of the “government of national unity” is that, even if Johnson follows correct procedure and quits, it is Jeremy Corbyn who should most likely be invited to set up a new government, not a cross-party coalition. There is no parliamentary mechanism for such a coalition to take power unless it is led by Labour.

Right to rent ruled discriminatory – an innovative judgment

If ever there was a petty-minded, oppressive and irrational notion it was former British prime minister David Cameron’s “right to rent” crackdown on illegal immigration, now ruled incompatible with the European Convention on Human Rights by the High Court. The 2014 legislation turned everyone letting residential property into an arm of the UK Border Agency – or an unprofessional and arbitrary backstop when the immigration authorities had failed. It even sought to give landlords supra-legal powers of eviction, to throw tenants out without a court process if the tenants could not prove their immigration status was in order (see this Al’s Law piece).

And of course landlords were likely to take the easy option of renting only to those who could produce a British passport – hence the legal claim that the whole scheme was had discriminatory effects and was therefore contrary to the ECHR.

But the judgment raises the intriguing issue of how far legislation, not in itself discriminatory or unlawful, can be deemed discriminatory when it simply prompts the discriminatory (and unlawful) behaviour of others – the landlords meant to operate the scheme.

Is Jeremy Corbyn’s no confidence vote ‘stunt’ a bigger deal than he realises?

Could Britain’s Labour Party leader Jeremy Corbyn inadvertently stumble into achieving what he has so far balked at even attempting: bringing down the Theresa May government? He has tabled a “symbolic” motion of no confidence in her personally while shying away from a motion under the Fixed-term Parliaments Act 2011 that could actually produce a general election.

He may not realise it but his motion could actually bring down the Government – if enough Tories become desperate enough to ditch May and put Brexit on hold.

Corbyn said the motion was to “put pressure” on May to name a date for the “meaningful vote” on her Brexit deal – and when she did name a date, he pressed on regardless. This vote has certainly been spun as merely symbolic: that’s how the Guardian saw it , presumably after talking to Labour sources:

“The form of the motion is such that it would not lead to a general election or even the ousting of Theresa May if she were to be defeated – rather it would amount to a symbolic defeat of the prime minister.”

Coincidentally, though, a week earlier, a report from the Commons Public Administration and Constitutional Affairs Committee was released here (pdf) on the very subject of confidence votes in the House – with this dire warning: “Any clear expression of ‘no confidence’ could topple Government”.