Public law

Magna Carta  © Getty Images

Last week the UK’s Cabinet Office sought silently to remove the reference to “international law” from the Ministerial Code.

The text had stated that there was an “overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”. The new version states that there is an “overarching duty on ministers to comply with the law and to protect the integrity of public life”.

Does this matter? From a strict legalistic perspective, there is an argument that it makes no difference: inclusion or exclusion of text from a ministerial code by acts of ministerial or civil service discretion do not create or change substantive law. And there is some force in this contention, though the courts can and do look at such documents when construing the obligations of the state under public law and the legitimate expectations of individuals who can be affected by state actions. Read more

Spending Review - Government Ministry Buildings

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To what extent does the influence of the Kingdom of Saudi Arabia reach into the domestic government of the United Kingdom? And what does the UK get in return? Read more


David Cameron  © Getty Images

On Monday, the prime minister told the House of Commons that a specific UK citizen had been killed deliberately by the UK state in a UK military operation:

Today, I can inform the House that in an act of self-defence and after meticulous planning, Reyaad Khan was killed in a precision airstrike carried out on 21 August by an RAF remotely piloted aircraft while he was travelling in a vehicle in the area of Raqqa in Syria. In addition to Reyaad Khan, who was the target of the strike, two Isil associates were also killed, one of whom, Ruhul Amin, has been identified as a UK national. They were Isil fighters, and I can confirm that there were no civilian casualties.

We took this action because there was no alternative. In this area, there is no government we can work with; we have no military on the ground to detain those preparing plots; and there was nothing to suggest that Reyaad Khan would ever leave Syria or desist from his desire to murder us at home, so we had no way of preventing his planned attacks on our country without taking direct action.

The rather legalistic tone and phrasing was no accident; what the prime minister was telling the Commons was not only that the operation had been a success but that it was also “lawful”. Like a defence advocate in court, David Cameron was keen to show that all the required elements to justify an otherwise unlawful action were present: it was “self-defence”, it was necessary — “there was no alternative”, and it was proportionate — there was no other method to achieve the aim of eliminating this target. The statement was, in essence, a formal box-ticking exercise. Read more

Founder Of Kids Company Camila Batmanghelidjh Leaves LBC Studios

Camila Batmanghelidjh  © Getty Images

One should always be wary of charming people, for they are used to making you feel good about them getting their way. And one should always be cautious of organisations whose first line of defence when placed under scrutiny is something emotive and manipulative like “won’t somebody, please, think of the children?“.

Neither of these wise stances necessarily mean that Kids Company and its charismatic and well-connected head Camilla Batmanghelidjh have done anything culpable. The truth is that, at this stage, very few people know what happened before the UK charity closed in a financial mess.

But what is plain is that subjecting any “third sector” service provider to any meaningful accountability is difficult, and that this needs to change. The appropriate mechanisms are not in place, there is almost no transparency and any public criticism can be deterred as appearing “unhelpful”. Who would want to be responsible for stopping what could be valuable and wonderful work? Read more

David Cameron Attends Prime Minister's Questions In Parliament

Michael Gove  © Getty Images

If there is an epitome of just how bad the tenure was of the previous Lord Chancellor and Secretary of State for Justice it has to be the prison books fiasco. This remarkable policy — even more than the time the Ministry of Justice instructed counsel to submit to the High Court that the Lord Chancellor should be able to disregard the rule of law — told observers all they needed to know about the ways in which Chris Grayling was running his department.

The thing about the prison books fiasco was that it was not even a deliberate policy decision: the listing of books as a “privilege” in an elaborate prisoner incentive scheme was the sort of error that a bureaucracy can make from time to time. Nobody perhaps realised, or cared, that making books harder to obtain was contrary to the government’s own project of promoting literacy among prisoners. No government department is really “joined-up”. Read more

The State Opening Of Parliament

Michael Gove at the State Opening Of Parliament  © Getty Images

A curious Martian looking down at the government departments in Whitehall would not work out much about the British party political system. The alien would not grasp that there is supposedly a policy division between Conservatives, Labour, and the Liberal Democrats. Read more

The State Opening Of Parliament

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The Queen’s Speech last week had one notable omission: the firm commitment to a new Bill within months to repeal the Human Rights Act 1998 and for it to be replaced with a “British Bill of Rights”. Read more

It is a misconception to say Conservatives do not “do” human rights and civil liberties — yet Tory civil libertarianism wants the benefits of a libertarian approach to policy in certain cases without the means of placing such libertarianism on a sustainable basis. So Raab’s appointment as a junior minister at the ministry of justice is an intriguing move Read more

Michael Gove

Michael Gove  © Getty Images

The United Kingdom’s Conservative party no longer has to share power as part of a coalition. Now it has a majority in the House of Commons, one of the very first things the Tories want to do is repeal the Human Rights Act 1998 and replace it with something that purports to protect the rights of citizens but has a weaker connection to the European Convention on Human Rights. Getting rid of the Act is a long-standing objective of the Conservatives, and they now want to repeal it at speed.

According to the Guardian, repeal of the Act is an urgent priority for the new government:

The scrapping of the human rights act, a pledge included in the Tory manifesto, is one of the measures to be included in the prime minister’s plans for the first 100 days, when the Queen’s speech is delivered on 27 May.

The “pledge” is in the 2015 party manifesto, which contains the following statements about the Act:

We will…scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain. [...]

The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. [...]

We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK.

 Read more

Procession Of Judges Marks Start Of Legal Year

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Imagine a politician making a clear and specific promise before an election. Imagine then, if you can, that politician breaking the promise when he or she is elected to office.

Is this the sort of situation where a voter should be able to go to court and obtain some legal remedy?

Usually when somebody lets you down over something important you can threaten to get the law involved. For example, if a debtor does not pay what is due, or if another driver does not take proper care and attention, you can sue the culprit.

And your rights to legal redress are not just for straightforward disputes: a well-brought legal action can halt an infrastructure project worth billions of pounds if the developer has put a foot wrong, and a judge in chancery will be perfectly happy on a Tuesday afternoon to rule that there is a worldwide complex trust preventing some absconder from misusing a victim’s assets. Where there is blame, there is usually a clever lawyer somewhere who can formulate for you a claim.

 Read more

A French national flag at the Paris statue "Le triomphe de la Republique"  (Joel Saget/AFP/Getty Images)

A French national flag at the Paris statue "Le triomphe de la Republique"  © Joel Saget/AFP/Getty Images

What should be the legal response to terrorism?

This question needs asking, for whatever the security problem, the political solution seems invariably to be more law. Something dreadful happens, and the response of many UK politicians and officials is “tougher powers” and another bill on the statute book.

It is almost as if the passing of a law is seen as a kind of solution in and of itself. Something must be done, and therefore something will be done.

And so in the UK over the last 15 years, we have had a Terrorism Act, then an Anti-terrorism Act, then a Prevention of Terrorism Act, another Terrorism Act, then a Counter-Terrorism Act, and most recently a Terrorism Prevention Act. Currently there is a Counter-Terrorism and Security Bill before parliament.

If statutes were weapons in the war against terror, the UK would be armed to its hilt. And inevitably, the atrocities last week in Paris have prompted the prime minister and home secretary to call for even more laws to combat terrorism.


Part of the reason for this glut of legislation is, of course, the relative impotence of UK politicians. There is, in fact, very little they can be seen to be doing in response to any crisis other than to promote additional laws. Policy making is hard, and good policy making and its implementation is not showy. Sometimes policy making will not need any new laws at all. But for the busy and media-conscious politician, it is easier to ban something, or to create a new legal power, than to actually think through what one is doing. Read more

A barrister picks up his wig (Photo by Ian Waldie/Getty Images)

  © Ian Waldie/Getty Images

A couple of months ago I raised the issue of whether police in the UK were using the Regulation of Investigatory Powers Act (RIPA) to obtain information which is legally privileged.

Legal privilege is important. In simple terms it means that your dealings with your lawyer are strictly confidential, both in respect of the content of the advice you are given (“legal professional privilege”) and also anything done to assist you in preparing a claim or a defence (“litigation privilege”). In essence, when information is under legal privilege then no court order can oblige you to disclose it to the court or other party, including the police.

It seemed obvious to me that there must be some possibility that police could be using RIPA to obtain information which would be covered by legal privilege. There are about half a million public authority requests for “communications data” every year (that is, information public authorities can get from a telecoms or internet service provider other than the actual content of your communication). Also it is now known that the Metropolitan Police have used RIPA to obtain details of calls made and received by journalists. So, if the police are using RIPA to circumvent the usual protection given to journalists’ sources, there seemed no reason, in principle, why the police would not use the same means to get information which would otherwise be legally privileged.

But what was lacking was evidence: to say something could be happening is not the same as saying that it is happeningRead more

A general view of New Scotland Yard on October 2, 2008 (Photo by Dan Kitwood/Getty Images)

  © Dan Kitwood/Getty Images

The news that the UK’s Metropolitan Police had obtained the “telecommunications data” of a journalist so as to identify his confidential source has significant implications for criminal and civil lawyers — and also for their clients.

What the Met did was simple: they merely completed a request form under the Regulation of Investigatory Powers Act 2000 (RIPA) and sent it to the journalist’s mobile telephone service provider. As long as the RIPA request is approved by the appropriate senior police officer, the telephone company provides the requested information by return. This information is not the actual content of a call or voicemail — that would (or should) require an intercept warrant — but all the accompanying “metadata” (a list of calls to and from the mobile, their duration and times, and even the geographic location of the mobile during the call) as well as subscriber information.

For the police, asking for this telecommunications data is routine. Every year the police and other public authorities make about half a million RIPA requests. None of these requests need a warrant, and none need consent. Indeed, the subscriber is not even told the request has been made. All this information is provided silently and easily to the police force or other public body making the request. There are no real safeguards against abuse.

So, if the police can casually use RIPA to obtain the telecommunications data of the political editor of the Sun newspaper, is there any limit on who else they would seek this data on? And even if there was such a limit, how would anyone know that it was not being respected? Read more

The UK government is pushing through emergency legislation.

The Data Retention and Investigatory Powers Bill was published yesterday, and the intention is that it will be an Act of Parliament by the end of next week. A legislative process which usually takes up a year will be truncated into seven days. This is law-making in a hurry. Read more

What would be better than this sentimentality about a thirteenth century manuscript would be for the UK to have proper constitutional guarantees: to make it possible for a defendant to rely on his or her fundamental rights in practical case, and to make it impossible for parliament and the executive to violate these rights. But this would mean that the UK would at last have a mature approach to constitutional rights. Read more

Last weekend the Sunday Mirror reported, almost in passing, that Chris Grayling may be sacked from the UK cabinet:

So Justice Secretary Chris Grayling is expected to get the chop and be replaced by Northern Ireland Secretary Theresa Villiers.

This would be welcome news. Mr Grayling has not been a success as justice secretary and lord chancellor, in respect of either policy making or political leadership. Indeed, it is difficult to imagine a worse ministerial performance. Read more

The Ministry of Justice – which is responsible for the prison system in England and Wales – decided in November 2013 that it will restrict books that can be received by serving prisoners. This week the excellent Howard League drew public attention to this, and yesterday a number of distinguished authors signed a letter of protest.

We need to be clear as to the nature of the policy. The relevant document is here (Word document, see especially pages 45 and 56). It is not a general “ban” on books as such. Prisoners will still have access to the books in the prison library and can have up to 12 books in their cell – but access to any books sent from outside prison – either purchased or sent by friends and family – will only be as rewards for good behaviour. The prospect of books, like trinkets, will be dangled to prisoners as treats.  Read more

Very few citizens of the UK appear to have any great interest in constitutional affairs. And, other than those with a passion for devolution of its constituent nations, there are probably a few hundred people who ever give constitutional reform any serious thought.

Many do not even believe that there is even a constitution in place; such things are instead what foreign folk have to cause themselves needless difficulties. A sincere concern with constitutional affairs seems the preserve of the Tory fogey or the academic radical, but is not the stuff of serious politics. Read more

Chris Grayling, the justice secretary and lord chancellor, is attacking judicial review. He has derided it in the Daily Mail, and the department he heads, the ministry of justice, has issued a consultation paper on further “reform”.

It is worth considering what point, if any, is served by judicial review. This will help explain why the government’s proposals to narrow the rights of individuals and representative groups to bring judicial reviews should be of general concern. Read more