Jeremy Wright’s rule of law: Justice shall not be sold – unless the price is right

Dicey? Bingham? Or perhaps you prefer the Wrightean doctrine of the Rule of Law as it operates in the UK? For Jeremy Wright (the Attorney General for those who’ve forgotten – or perhaps never knew) has given us his thoughts on this complex and contested legal principle.

Generally “the rule of law” might be boiled down to a simple phrase: No one is above the law – even the Government. This though, is not the quite message Mr Wright wishes to get across. His speech “on the UK’s long commitment to the Rule of Law” was delivered at the London Law Expo in the City of London. The Expo is a sort of legal/business fest with, this year, Dragons’ Den man James Caan as keynote speaker. Wright’s intended audience, therefore, was the business community – specifically the international business community. What excites Wright is less Britain’s commitment to the rule of law, forged through revolts and rebellions and the slow painful birth of a democratic society. No, what excites him is this: that

“the numbers show just how successful the legal services sector has been: in 2012 it was worth over £20 billion, or 1.5% of UK GDP and contributed some £4 billion in export value. There were over 300,000 people employed in our legal services sector with over 200 foreign law firms operating in London and elsewhere in the country”.

Britain, for these reasons, is not just a place to do business. It is a place to do law. So the point of  the rule of law is: it’s good for business. “Our long commitment to the rule of law I believe, is of central importance to the British economy”. For Wright has very little interests in the philosophy or practice of the rule of law; rather he is concerned to established Britain’s (or perhaps only London’s) unique selling point: “All companies know that they will be judged by clear rules applied in accordance with the law.” The rest of the speech is a promotion of UK plc’s legal services. Somehow he even manages to spin the Libor scandal as a “good” story:

Theresa May’s immigration rules expel the rule of law

The UK Government has instituted a remarkable constitutional innovation that redefines the concept of the rule of law. It has declared that the Government can tell judges how to interpret legal rules governing executive actions when those actions are challenged in court.

This is the implication of guidance attached to the new Immigration Rules laid (briefly) before Parliament and coming into force on 9 July 2012.

Home Secretary Theresa May has set out new rules on immigration but, crucially, severely curbed judges’ rights to interpret those rules in the light of Article 8 of the European Convention on Human Rights. She has done it on the basis of a misreading – or perhaps, more accurately, a misrepresentation – of case law on the immigration issue.

Since the Immigration Rules are not statutory (they are issued by the Government rather than passing through the full legislative process in Parliament) they can be struck down by courts if not in conformity with the European Convention. Article 8(1) says: “Everyone has the right to respect for his private and family life, his home and his correspondence.” It is blamed by the government for preventing the deportation of undesirables, including criminals or potential terrorists, if they can claim a “family life” in Britain. This has irritated the current and previous Governments for years.

Notoriously, even the fact that a foreign man and his British girlfriend co-own a cat was once adduced to enhance a non-national’s “family life” credentials under Article 8 – at least according to Mrs May.

David Cameron, Sharon Shoesmith and the rule of law

There is a breakdown in the rule of law in Britain – and the government is at the heart of it.

The latest evidence is in the government’s response to the Sharon Shoesmith Baby P case. David Cameron, the prime minister, is ready to throw good money after bad to challenge the Court of Appeal finding that the former Haringey council director of children’s services was sacked unlawfully at the insistence of Labour children’s minister Ed Balls.

The case has already cost £1m, but the money is neither here nor there; for Cameron it is a matter of principle – the principle that the government should be above the law.

He announced there would be an appeal to the Supreme Court because ministers want to uphold the principle that they – rather than the courts, through judicial review – should be responsible for their decisions. “It does seem to me important that governments are able to manage their organisations and provide accountability when things go wrong,” he said.

It is, apparently, a constitutional issue about ministers’ decisions being overturned by judges – on the face of it, one would have thought, an essential requirement if Britain is to be governed by the rule of law.

Unfortunately Cameron’s understanding of the idea of the rule of law is rather simplistic. He thinks Parliament is supreme so judges shouldn’t keep interfering with it. And since he’s the boss of Parliament, he must surely be the most supreme of all.

This was the prime minister who claimed the London university fees rioting was an example of a breakdown in the rule of law. He wasn’t talking about police kettling peaceful demonstrators or arresting people without charging them. He was talking about the rioters. A temporary and geographically limited breakdown in law and order perhaps, but a collapse in the rule of law?

So let us clarify for him what the rule of law is. This is the view of 19^th century jurist AV Dicey: No one should be punishable except for a distinct breach of law established in the ordinary legal manner before courts of the land; nobody is above the law and everybody is subject to the ordinary law whatever his rank or condition; anyone may go to the law courts to remedy breaches in rights and liberties.

Dicey’s principles on the rule of law in the Law and the Constitution, 1885

“a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land;
b. No man is above the law, whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;
c. It is because England has a constitution that the personal rights and liberties of individuals are always secure. This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.”

This raises many questions but is a good starting point for those like Cameron who don’t have much of a grasp on the basic theory. Take this for example: before the royal wedding he felt there were too many pen pushers and local authority busybodies demanding vast amounts of paperwork, health and safety checks and expensive insurance for street parties. His response?

“Let me put it like this. I am the prime minister, and I am telling you if you want to have a street party, you go ahead and have one.”

His clear view is that the will of the prime minister attached to a populist cause trumps the law and all the processes in place to ensure the law is followed. Street party organizers had permission from the highest authority in the land to ignore the law since the law was being unreasonably enforced by a bunch of bureaucrats.

Similarly with the Madeleine McCann case. The police, according to the classic view of the separation of powers, are independent from government. Yet Cameron has directed Scotland Yard to put millions of pounds of public money into further investigating the disappearance of the little girl, prompting Lord Harris to accuse him of driving a coach and horses through police operational independence.

Of course, Cameron only sent a letter. But the prime ministerial crest and the Downing Street postcode on the envelope would have ensured that it didn’t stay long in the Met’s pending tray.

In the Shoesmith case, Cameron’s objection is to a judicial review, the process whereby courts can examine the procedures of administrative bodies, including the government, to test their legality. The judges do not toss aside laws made by Parliament; they do not substitute their judgment for that of the minister on matters such as Shoesmith’s competence or culpability in the Baby P case. They simply examine whether the procedures used to arrive at the minister’s decision were correct and hence whether the decision was fair.

Judicial review became more accessible since reforms in the 1970s to allow ordinary people to, in Diceyan terms, remedy breaches of their rights and liberties. This is rather like that other Tory bugbear, the Human Rights Act. Cameron believes those rights and liberties are sufficiently protected by the fact that ministers are “accountable” – to Cameron himself.

When ministers have spread a bit more poison about unaccountable judges standing in the way of the democratically elected government, we may expect to see proposals for a “reform” of the way the judiciary is appointed. It won’t be difficult to undermine the Judicial Appointments Commission set up in 2006 as “an important step towards strengthening the drive to officially enshrine judicial independence in law, enhancing accountability and ensuring greater public confidence”. It has not done a good job in promoting diversity, it is extremely bureaucratic and unwieldy. But the real agenda will be to swing the balance of power back towards the Supreme Leader.

Note: The Supreme Court has now rejected leave to appeal in the Sharon Shoesmith case (2 August 2011)
Also as predicted above, the Ministry of Justice has now (November 2011) made its proposals to give the government more say in judicial appointments, discussed here

For a more considered look at the rule of law see the Thinking Legally blog: Bingham’s rule of law: Outdated? Utopian?

Lord Bingham: the rule of law or bending the rule of law?

The death of Lord Bingham, the former senior Law Lord (senior appeal judge in what is now the UK Supreme Court), silences a significant voice on the issue of how far incursions into human rights by the government can be justified by the “war on terror”.

Lord Bingham’s was a committed but moderate view which led him, perhaps unfortunately, to a sense that the judiciary must in a democracy with a sovereign parliament, craft a compromise on human rights with the political sphere, the legislature and the executive. His two judgments in the linked cases commonly known as “A v Home Secretary”, one on torture and one on detention without trial, bear witness to such a disturbing compromise. The torture case allows the possibility of people being detained without trial on torture evidence. The detention case judgment balked at simply declaring detention without trial wrong and refused to deal with whether there truly was an emergency in post-9/11 Britain sufficient to justify such detention.

While the cases were based on classic, text book subject matter regarding the rule of law, the use of torture and detention without trial, and Bingham’s rulings did not favour the government, his judgments nevertheless left open wide areas within which the executive may act apparently contrary to those principles.

Take the torture case, (reported as A and others v Secretary of State for the Home Department (No 2) [2005] UKHL 71) which hinged on the use that could be put to torture evidence gathered abroad without the connivance of British authorities. Put briefly, Bingham said that such evidence could not be admitted in a court of law, including in the tribunal set up to hear appeals against arrest and detention of foreign terror suspects, the Special Immigration Appeals Commission (SIAC). However, the authorities could act on such evidence if they came across it – they could arrest individuals on the basis of information got by torture. He says (at paragraph 47):

“I am prepared to accept … that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6.”

Article 3 relates to torture, Articles 5 and 6 to detention and trial. Lord Bingham is saying security services are wholly free to act upon third-party foreign torture evidence to arrest and detain. This might seem reasonable if the security services could make their arrests, question the detainees and find admissible evidence for a trial. Unfortunately several appellants in the case were being held without trial (subject to an indefinitely pending deportation). On the face of it, the government lost the case since it wished to reserve the right to offer such evidence to courts. But Bingham’s subtle distinction not only did not help the appellants but it opened a wide area of operation for the security services to flout human rights.

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.

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.

Are targeted drone killings lawful? The jury’s not yet in

So who are they, the urbane, sophisticated sharp-suited types with a licence to kill, drafted in to the front line in the battle against Islamic terror? They are – the government lawyers. The drone killing of Reyaad Khan and Ruhul Amin, far from being a spur-of-the-moment use of pre-emptive force to ward off an imminent attack, was actually weeks in the planning – with lawyers crawling all over it.

But there’s a paradox. If so much thought and work went into the killings, (and the latest US attack on “Jihadi John” – Mohammed Emwazi) how can it be justified as a self-defence response – “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”, according to the “Caroline” test legal pundits are talking about? Were the killings an act of “instant and overwhelming necessity” against an “imminent threat” with no other means of defending Britain from them?

Leveson anger over lawyer’s asylum case ‘shambles’

Senior UK judge Sir Brian Leveson has strongly criticised a solicitors firm for the “systematic failure” surrounding an asylum application on behalf of two Pakistanis. The handling of a judicial review application by solicitors Rashid and Rashid, of Merton High Street, South Wimbledon, London, was put under investigation by the Solicitors Regulation Authority.

Leveson, President of the Queen’s Bench Division said: “What has happened in these cases follows what has become an all too familiar and depressing pattern in which the legal representatives demonstrate a remarkable lack of knowledge and/or regard for the substantive and procedural rules governing claims for judicial review.”

He spoke of the danger of lawyers abusing the court processes for personal gain and questioned whether Rashid and Rashid had acted “in a professionally appropriate manner towards its clients”. The suggestion was that the firm extracted a fee of around £5,000 with a promise that the clients would have experienced counsel, yet the case seems instead to have been entrusted to an inexperienced case worker. That would be a clear breach of duty, said Leveson. 

Mr Justice Jay, who received the application in the High Court, had said: “These proceedings are a complete shambles. You have not begun to understand the basic procedures which apply.”

Rashid Khan, the sole principal at the firm, has admitted the grounds set out in a judicial review application in the case of Adil and Amir Akram by the case worker, who holds a legal secretary diploma, “were badly drafted and failed to identify the relevant principles”. 

Anderson and surveillance: RIPA is still the law – and it’s being broken

The Anderson report on surveillance (according to the media) suggested that UK security services should “keep” their powers of bulk surveillance – the downloading and storing of communications and internet material, basically without limit except the limitations of the technology they have. The report has come out in the same week that the Metropolitan Police were unable to confirm or deny (for which read “confirmed”) that dummy mobile phone towers, or Stingers, were lifting material from the phones of passers-by, apparently ad hoc and without specific investigatory purpose.

But it is really not clear that bulk surveillance powers do have legal sanction in Britain – and nor does Anderson say unequivocally that they do. Which is why, under Theresa May’s new “snooper’s charter” (the draft investigatory powers bill), she will be seeking to legalise something she claims is perfectly legal already – but really isn’t.

So what is the law? The key piece of legislation is the Regulation of Investigatory Powers Act 2000 (RIPA) – which Anderson wants replaced. This is often referred to as source of surveillance powers for just about anyone from GCHQ to schools checking on the residency of parents of local authorities looking at our recyling.

In fact it is intended to control, curb, restrict and limit surveillance – and in particular it is intended to prevent the state’s (and private bodies’) disproportionate bulk downloading and retention of the private information – which is just what the security forces do now as far as they technically can and which they will be able to do far more effectively under the investigatory powers bill, requiring ISPs, Google and the rest to keep such information for them.

Mass surveillance in the UK: Charles Farr’s flawed arguments

Hang on! Just because UK government security official Charles Farr says GCHQ et al have done nothing unlawful in their mass digital surveillance, that’s no reason to believe him. You wouldn’t believe a burglar rifling through your drawers; why believe the spokesmen for the people rifling through your personal emails and internet searches?

Farr has put in a defence in the case brought by Privacy International against the Government, not a statement of the law, yet it is being treating as gospel truth. In particular people are demanding the law be changed – conceding that the surveillance is currently lawful (among them pro-security services types such as Lady Neville-Jones).

In fact a judge has not ruled in the case yet, and there are fundamental flaws in Farr’s argument that UK-originated digital material on overseas servers is fair game even though it originated in or returned to the “British Islands” (in the quaint formulation of the 2000 Regulation of Investigatory Powers Act).

For starters it is strongly arguable in law that nothing in the Act can sanction unreasonable mass surveillance – since that was not the purpose of the Act. RIPA was intended to enact a European Directive banning such downloading and storing of personal material and a judge will interpret it in that light. He or she is likely to take a dim view of any alleged “loopholes” in it. (This argument is made briefly below and at length here.)

But Farr’s case is further flawed – not least by a disingenuous attempt to claim parliamentary sanction for mass surveillance on the basis of an arcane exchange in the House of Lords one July evening in the year 2000.