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

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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.

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

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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)
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Begum judgment: a dilemma for liberals

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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.”

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

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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. Read the rest of this entry

Can Boris Johnson defy a commons vote of no confidence?

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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.
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Right to rent ruled discriminatory – an innovative judgment

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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.

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Can Sir Philip Green suppress media interest in his ‘banter’?

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So it was just banter. That is how British entrepreneur Sir Philip Green is defending his behaviour towards employees – and presumably defending his right to keep his behaviour secret with the full weight of a permanent High Court injunction. But hasn’t his statement to the Mail on Sunday (“There has obviously from time to time been some banter, but as far as I’m concerned that’s never been offensive”) rather undermined his case for such an injunction?

The essence of the case is that his behaviour, as covered by non-disclosure agreements with alleged victims, is a private matter. It comes within the English Common Law “equitable doctrine of confidence”, that is to say confidentiality, particularly applicable to the relationship between employer and employee. “The doctrine serves the public interest by encouraging trust, candour and good faith in legal relationships,” as Mr Justice Haddon-Cave expressed it in the original High Court injunction case (which Green and two associated companies lost).

One has to ask, of course, whether Sir Philip’s “banter”, was likely to encourage “trust, candour and good faith” with his employees. He insists: “I’ve got a good relationship with all my staff” – though some would seem to disagree. But the legal point is that Green and his lawyers have to establish the issue as one of confidentiality/privacy since that is the only way they can exercise power over the media to bar publication. This is the reason for his rather carefully worded (and hence rather odd) statement when his name was revealed in the House of Lords by Peter Hain:

“to the extent that it is suggested that I have been guilty of unlawful sexual or racist behaviour, I categorically and wholly deny these allegations”.   

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Who pays for Grenfell-style cladding? The government plan

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Various UK government ministers have insisted that those living in flats with flammable Grenfell-style cladding should not have to pay for it to be stripped from their blocks and replaced. The latest view was given by Dominic Raab, Minister of State for Housing and Planning, who told a CIH Housing conference that “leaseholders should not pay those costs. And the private sector should not be let off the hook.”

The legal stituation as it stands is that cost of recladding will very much fall on leaseholders (the people who have bought their flats), as suggested by the Citiscape case (judgment here – not binding but indicative of where we are). So does the Government have a plan? Apparently it does, and Raab’s comments give clues to what it is. In broad terms, this seems to be it:

• The main thrust of the plan will be for those leaseholders who have bought their flats from local authorities or through housing association schemes (such as right to acquire or shared ownership). As the law stands, one would expect the LAs and housing associations to get the recladding done and bill the leaseholders for their share. (Note that other tenants may be in those flats who would never have faced such costs.) Instead:

• The Government will dip into its affordable housing budget and will use it to fund 50% (according to rumours) of the costs of recladding for leaseholders in the above categories. The implication of Raab’s words at the conference is that the local authorities and housing associations will fund the rest of the cost on behalf of leaseholders (as well as the full cost for the rest of their flats in the blocks ie those with tenants rather than leaseholders).

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‘Inaccurate and misleading’: Judge rejects Legal Aid Agency’s attack on eviction advice service

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A High Court judge has delivered a devastating crtitique of the UK Legal Aid Agency over its moves to change the way people facing eviction or repossession of their homes receive legal help. A crucial part of his argument for the change was based on a claim that was “both inaccurate and misleading” – or, as will be seen (and thankfully this blogpost can be less circumspect in its language), what is commonly known as “untrue”. The LAA had claimed two lawyers organisations backed the changes. In fact they had not been asked for their view.

The arguments of the Ministry of Justice and the Legal Aid Agency used to justify the change were “based on assumption or conjecture or, at most, ‘anecdotal’ evidence from a handful of un-named providers [of the legal services]”, said Mrs Justice Andrews, hearing a judicial review application brought by the Law Centres Network (pdf) in the High Court.

The matter at issue was the Housing Possession Court Duty (HPCD) schemes that seek to ensure on-the-day legal advice and representation for people in court facing repossession and eviction. They are largely funded by legal aid to the tune of £3.6m a year – 0.2% of the legal aid total – and in many cases not-for-profit organisations, including local law centres, have the contracts to do the work.

Around 2014 the Legal Aid Agency suggested the schemes should be subject to price competition for the first time and re-tendered in a more consolidated form – ie a reduced number of schemes covering wider areas rather than focused on local courts. (At around this time there were were 117 HPCD schemes covering 167 courts; this was to be reduced to less than 50).

The argument was that some providers had withdrawn from offering schemes for economic reasons and  the change would promote “sustainability” (that weasel word meaning anything and nothing). But Andrews found no evidence for either contention. Read the rest of this entry

How Labour opened hostilities against the Windrush generation

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“Gloria Fletcher wouldn’t have lost her job as a consequence of anything a Labour government did.” How wrong Labour MP Jack Dromey was when he made this confident statement on Radio 4’s Westminster Hour (at 38 mins) about one of the victims of the Windrush scandal. He was seeking to distinguish his party from the UK Conservative government that put in place the “hostile environment” against immigrants — with appalling effects on the Windrush generation in particular.

But it looks as if Dromey was wrong when he claimed that Gloria Fletcher, sacked after 36 years’ working in the same job in Britain, would never have fallen foul of Labour immigration policy. In fact she seems to have been the victim to Labour’s own legislation, passed as far back as 2006, to institute a “hostile environment” in order to drive out illegal immigrants from employment.

Labour’s 2006 Immigration, Asylum and Nationality Act at Section 15 says:

(1) It is contrary to this section to employ an adult subject to immigration  control if [broadly, s/he is an immigrant without leave to remain].

(3) An employer is excused from paying a penalty [for employing such a person] if he shows that he complied with any prescribed requirements in relation to the employment.

It turns out that, to avoid a penalty of up to £10,000 for, even unknowingly, employing a person without a legal right to be in Britain, the employer must have checked his/her documentation — a passport, for example, or any other relevant immigration document. This is what Mrs Fletcher had to show her new employer (after her firm was taken over). And since she had been in the country perfectly legally for 50 years without needing a passport or other document to stay, she could not produce the required proof.

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