Legality, Justice and Syria part 2

I have already set out, as briefly and simply as I can, the positive claim of why I consider the military action against Syrian targets on 13/14 April to have been contrary to international law, but also why I do not consider that to be determinative of the moral question of whether it was the right thing to do. This post is negative in form. I shall consider a number of arguments against the position I have already set out in order to knock them down.

LAW

General Assembly Override?

In his in many ways excellent and clear advice to the Deputy Leader of the Labour Party, Professor Dapo Akande suggests that the collective action route is, and was, not closed off by deadlock in the Security Council.

 

In 1950 a deadlock had arisen because of the withdrawal of the Soviet Union from the Security Council over the refusal to recognise the People’s Republic of China as the legitimate representatives of the Chinese State. This prevented any UN military action over the Korean War. UN Resolution 377A, also known as the “Acheson Plan”, was a resolution of the General Assembly whereby if the permanent members of the Security Council were deadlocked, the General Assembly could in an emergency special session authorise the use of force. Although this route to authorise military force has never been used, could it be as Akande suggests?

 

No. That resolution did nothing to alter the terms of the Charter, which contains the rules which the signatory states have agreed to. Article 108 of the Charter allows for its own amendment where this is done by two thirds of the members of the General Assembly, and ratified by two thirds of the members of the United Nations, including all the permanent members of the Security Council. Resolution 377A did not meet this threshold (because it could not without Soviet agreement which it withheld). Resolution 377A does nothing at all therefore to the Charter. The Charter is what it purports to be: an exhaustive code of when military force is permitted. The power to block military action given to permanent members of the security council by the Charter has not been bypassed, and Article 108 is a form of double entrenchment of that power as those members can each block any change to the rules.

 

If an analogy is thought helpful, a resolution of the US Congress does not have precedence over the terms of the US Constitution with which it is inconsistent. The terms of the Charter take precedence over resolutions of the Assembly that are inconsistent with it, as those are the rules all parties agreed to.

 

Those who wish to rely upon strict legality should place no reliance at all upon Resolution 377A. If it had amended the Charter it would lower the bar for collective action. It has not.

 

Chemical Weapons

What of the Chemical Weapons Convention? Does Syria’s breach of that Convention justify military intervention?

 

As a matter of law, the answer is no.  One state breaking international law does not, alone, permit another state, or group of states, using military force against it.

 

Defence of the bright line rule against chemical weapon use may provide a moral argument as to why intervention is justified here, when it is not on other occasions, but it forms no part of the UK’s ‘humanitarian intervention’ legal justification for action. Theresa May in the Commons today understandably sought to conflate the two reasons, but they are quite separate.

 

Responsibility to Protect

What of the new international responsibility to protect doctrine (“R2P”), has that altered the position? The short answer is given by Professor Akande: it in no way altered the UN Charter rules on the use of force. This is clear from para 139 of the World Summit Document agreed by the Heads of State of the General Assembly. The responsibility to protect only arises within the confines already established by the Charter, it creates no new liberty to use force,

 

Article 2(4)

It has been argued that the wording of Article 2(4) of the Charter is not as restrictive in setting out a limit on the use of force as I have suggested. It provides:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

So, it has been argued by Professor Anthony D’Amato (here at pp 4/5) that where the use of force does not threaten the territorial integrity of a state (as dropping a bomb on an airport does not) or its political independence it is not prohibited.

 

On this view, if the UK government decided to drop a bomb on Paris for a laugh that would not be prohibited. That is not a plausible reading of the provision. Dropping bombs on other states is the use of force against their political independence (states claiming a monopoly on when force is lawful within their territories).

 

[It may be noted in passing how badly drafted art 2(4) is. Something has gone wrong with the grammar. Should the last clause be read as “in any other manner [use force] inconsistent with the Purposes of….”?]

 

Customary International Law

The origin of the UK’s case for a right of humanitarian intervention is this article by Christopher Greenwood, pp 161- 171 of which should be read alongside Akande’s as the case for the government (pending the release of the advice that forms the basis of its published opinion.) The argument is that such a right has arisen by custom, through interventions in Western Africa, Kosovo, Iraq and elsewhere.

 

Akande has the better of the argument, but he obscures this with the order of his presentation.

 

Let it be assumed, arguendo, that a custom of humanitarian intervention has been established. Assume that countries like the UK, Russia, China and France have routinely, over a long period of time, used it as a ground for the use of force. Let us assume that there is widespread agreement amongst commentators that this has happened, and lots of reports and statements from a large majority of countries accepting that this has occurred. Does that suffice?

 

In the absence of the UN Charter, it would. Absent agreement, we must infer the positive law from customary usage. (And where that too is missing from natural law reasoning: It is just wrong to invade other countries just as it is wrong to murder people regardless of the absence of any custom or  positive law on the point.) Once however there has been an agreement entered into, this replaces the need to look to Convention. As in other areas, such as UK domestic law, Conventional rules are subordinate to, and rendered otiose by, posited legal norms. The rules applicable to Syria are determined by the agreement (the Charter) it has entered into. Conventions established by other states are neither here nor there.

 

It is possible to vary an agreement. This variation may be inferred from conduct, and not just express provision. However, the hurdle for proof of this is very high where the parties have, under their agreement, specified how variation is to occur (as they have in Article 108). Syria would also have to be a party to any such variation. Nobody seriously entertains that this could be established in this case.

 

So, before we get to the question of whether any such Convention can be established as a matter of fact (and I consider this doubtful) the preliminary question is would it matter if we could? The correct answer is that it would not.

 

Romanticism

Lawyers are prone to two kinds of romanticism, both of which are false and need to be resisted.

 

The first is that the law answers definitively the moral question of how to act and no further difficult and contentious moral enquiry needs to be entered into. Rules are important, and things will usually go better if we guide ourselves according to good rules set down in advance rather than using our own individual notions of what justice requires. Rules are not however the only things that matter. Trying to prevent the murder of innocents through chemical weapons, for example, may be an important consideration on the other side. The reasons for the ability of Permanent Members of the Security Council to block collective action through force are found in the political interests of Britain, the USA and the Soviet Union as negotiated at Yalta in 1945. It has little or nothing to do with considerations of what justice might require. We cannot assume that the rules are not abhorent, let alone that they are good.

 

The second is that we must assume that the positive law is just, and where it appears not to be interpret it, or add to it, or ignore it, in such a way that it is. It is this trap that those who argue that there is a right to humanitarian intervention are falling into. It seems wrong, as a matter of justice, that the rules should prioritise the sovereignty of nation states (which are legal constructs) over the interests of human beings. Surely there should be a rule permitting unilateral intervention in the case of genocide, therefore, (so the reasoning goes) there is. However, if we think like that, why bother with the positive law at all? Why not just cut to the chase and ask, in each case, what does justice require? The central point of the positive law is to give us guidance independent of what justice requires.

 

We should not be romantic. We should have the courage to look at the positive law and accept that it is unjust, as in some respects international law is.

 

Morality

The number of bad moral arguments that can be made is infinite, but here are two prominent ones.

 

What about Myanmar?

There is a large amount of injustice in the world. If it is morally required to intervene in this case, why not in all cases? Why no intervention to stop or deter the killing of Rohingya people in Myanmar?

 

This kind of “what about” argument is never very persuasive, but first it must be conceded that if intervention is morally justified in the case of Syria, it is morally justified in all morally identical cases. Like cases should be treated alike.

 

However, three further points may be made.

 

First the use of chemical weapons morally differentiates this case. The use of chemical weapons in World War I led to the 1925 Geneva Protocol banning the use of chemical weapons. This bright line rule has been respected for purposes of combat for nearly a century (chemicals have of course been used against human beings by states). Although someone left to die in agony by a cluster bomb may suffer as much as someone poisoned by chlorine gas, the absolute prohibition was an advance that is worth defending.

 

Second, ought implies can. The states intervening in Syria lack the practical ability to end or deter many injustices in the world. Without the capacity to act there is no duty to do so.

 

Third the moral argument in favour of intervention may only establish a liberty to intervene, not a duty to do so. Exercise of the liberty in one case does not require it in all others. We should not refrain from trying to stop one injustice on the basis that we cannot stop all others.

 

The Bad Motives of Leaders

What if, for the sake of argument, the leaders of the intervening powers had bad motives? Say President Trump’s motive was to distract attention from the Stormy Daniels affair, or Theresa May’s was to improve the local government election results. Does that make it immoral to follow them?

 

No. If our reason for approving of the bombing were the unthinking following of leaders, rather than preventing the murder of civilians by chemical weapons, then their bad motives may be imputed to us. The true justification for the state’s action (or lack of it) is independent of the subjective motives of the leaders of the country carrying out the act. We cannot assume that because it is carried out by Trump that it is, therefore, wrong.

 

A better argument might be the fear of escalation, that bad leaders with bad motives cannot be trusted not to go too far. That maybe so, but their bad motives alone cannot be a determining factor. The evil man may be prudent, whilst the good recklessly ambitious.

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Legality, Justice and Syria

Law

The law is the easy part.

Absent agreement between them, the law between states can be found in Conventions and, where even they are absent, reasons of justice. Since 1945 however we have had the United Nations Charter, that was created by agreement. In areas it covers, it provides us with the positive law, replacing what was there before. The central point of the positive law is that it gives us guidance independent of reasons of justice. It closes off appeals to them. If it didn’t, the positive law would have little point.

 

Article 2(4) of the UN Charter has a prohibition on the use of force. This allows of two exceptions. The first is in Chapter VII, where the Security Council has been given power in order to fulfill its responsibility for the maintenance of international peace and security. The second is the right to self defence in article 51. (I argued back in 2015 that the drone strikes against ISIS targets were justified on the basis of the defence of the state of Iraq.)

 

Humanitarian Intervention

Take an extreme example. Say a government of a nation state led by a brutal dictator was carrying out a campaign of genocide against a minority group. Let it be assumed that it can be proven beyond peradventure that dropping a bomb on an airfield, hurting nobody, could prevent this. One permanent member of the security council opposes this action. Can other countries, individually or collectively, drop the bomb saving millions of lives?

 

As a matter of the positive law, the answer is clearly no. There is no ‘humanitarian intervention’ exception in the text of the Charter. Maybe such a rule could have been justified absent the Charter, but it now covers the field. There is no way of interpreting the words as meaning anything other than what they say.

 

That the Charter allows for no such exception is apparently astonishing given the context of its drafting. However, in 1945 it was envisaged that such action would be taken collectively. There is no get out where one permanent member of the security council opposes intervention.

 

Kosovo

It follows from the two propositions that international law on the use of force is found in the Charter, and that the Charter by its words only permits the use of force in the two situations described, that I consider that the bombing in 1999 by Nato forces in order to (successfully) prevent the ethnic cleansing of thousands of Albanians as contrary to the positive law.

 

That does not, however, answer the moral question of whether it was wrong.

 

Justice

Governments have good reasons for complying with international law.

 

First, that is what they have agreed to do. Pacta sunt sevanda: agreements are to be kept. This is principle of justice that applies to states as much as to people. States agreed to the UN Charter, and if they do not like certain features of it then the correct course is to vary it through further agreement.

 

Second, breaking international law undermines respect for it. Why should other states comply with international law if we do not? Unlike domestic law, international law is (largely) free of any sanctions for breach.Without an enforcement mechanism, the only way the United Kingdom has of encouraging others to comply with their treaty obligations is for us to comply with ours. The absence of a strong regime of sanctions for breach means that the United Kingdom has a stronger, not weaker, moral reason for compliance.

 

Third the moral question of whether to intervene in cases such as Syria is often extremely fraught and difficult. Dropping bombs may deter the illegal use of chemical weapons, but such illegality by the Syrian state does not alone provide other states a legal privilege to drop bombs upon it.  On the other side, dropping bombs kills people, many innocent. There is a danger of escalation. It would be better if the question of when action is permitted and required were settled by rules drawn up dispassionately in advance, and that is what the UN Charter tries to do.

 

But

But although the positive law has great weight in our moral reasoning, it does not have infinite weight. Sometimes breaking the law is the right thing (morally) to do. Two facts lessen the weight international law has.

 

First, it is obviously deficient, as my extreme example of the single bomb to prevent genocide illustrates. The bar to collective action is set too high. One permanent member of the UN Security Council having power to block any collective action entails in practice and not just in theory that no legal force will be used in some cases to prevent even the most grotesque crimes committed within nation states.

 

The explanation, but not justification, for the high bar is realpolitik, not justice, Members of the security council wanted, and want, the power to block the lawful exercise of force against themselves or allied countries. There is no practical prospect of this being changed. In this respect, international law is in a worse state than it was before 1945 as a matter of justice.

 

Second, the question of whether to comply or not with international law is an example of the prisoners’ dilemma, All states will be better off if there is universal compliance, but if some states follow the rules, whilst others do not (by for example annexing part of a neighbouring state) that may place those who comply with the rules in a worse position than they otherwise would be.

 

UK Government’s Legal Position

 

The UK government sets out its legal position as follows

 

The legal basis for the use of force is humanitarian intervention, which requires three conditions to be met:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian suffering and must be strictly limited in time and in scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).

 

There is no textual support for this within the UN Charter at all. It is implausible as a statement of the positive law.

 

It is however a good statement of what the law ought, as a matter of justice, to be. There is a danger of judging these things in hindsight. The bombing of the former Yugoslavia “worked” (whereas other interventions have not) but my judgement, for what that is worth, is that it was right but unlawful, regardless of the outcome.

 

The UK government has an interest in respect for the rule of law, both nationally and internationally. It cannot say “this action is right, albeit unlawful.” So, it portrays what is in fact an argument of justice as one of legality.

 

Whether the decision to bomb is, morally, the correct one cannot be definitively answered for us by the positive law, Each of us, in this regard, is on our own.

Why Punish?

Retribution is poor justice”

-Simon Jenkins

 

Politicians are relentlessly forward looking. What will make things go better in the future? Justice, by contrast, usually looks backwards. What do these people deserve, given what has happened? These perspectives are often in conflict with one another.

 

If we could prove, beyond peradventure, that locking a certain class of person up for long periods of time decreased their propensity to commit crimes, would it be ok to do so? Would it be ok to punish you if it made you a better person?

 

If we could prove, with absolute certainty, that locking up certain people would deter either them or other people from committing crimes, would it be ok to do so? Philip K Dick in his (brilliant) short story The Minority Report imagines a world where criminals could be arrested and detained for crimes before they’re committed because of “precogs” able to foresee the future. Would that be ok?

 

If an individual commits a grotesque crime, but immediately repents and becomes a thoroughly good person, who we know for certain would never offend again and whose punishment would deter nobody else from behaving similarly, should the state forgive and forget?

 

My answer to all these questions is an emphatic “no”. Instrumental, forward looking justifications for punishment, such as rehabilitation and deterrence, are insufficient. They do not suffice because it is immoral to use people as a mere means to an end. That is the point of Dick’s story, and the mockery by Voltaire of the British execution of Admiral Byng.

 

Retribution

If I am under a duty to do (or not do) something, what happens to the duty once I have broken it? If I am under a duty not to murder you, and I do so, I can no longer comply with it. Does the duty then disappear into the ether? Is it now so much spilled milk? Should we all now look remorselessly forward, and decide how things would now go best, ignoring the past?

 

I would suggest not. The original reasons for the duty do not disappear once the duty has been broken. Those reasons persist. They now provide the explanation as to why the wrongdoer deserves to be punished.

 

If a metaphor is thought helpful, a criminal, by breaking his duty, has taken a freedom that he does not rightly have. The original justification for the duty now also provides the explanation for removing an equivalent freedom from him.

 

Other Factors

The above defence of retribution explains why we think it only acceptable to punish criminals, and not innocent people, even though the reforming or deterrence effects of punishment may be unrelated to whether the person subject to them is or is not a criminal.

 

However, the degree of punishment that is appropriate is underdetermined without more. We can accept that murder deserves more than a few hours of detention, and parking on a double yellow line does not deserve life imprisonment, but at the margin there is no right answer to the question of whether a violent robber deserves one, two, three years or more.

 

Within this margin of uncertainty therefore, other instrumental factors, such as deterrence or rehabiliation may be brought into play in determining a sentence. But we should not punish beyond the range that retribution justifies, that would be to use the wrongdoer as a means to an end. We should not have a system of outlawry, where criminals fall outside of the constraints on punishing people more than they deserve. A judge in sentencing should therefore start with the question: what is the range of punishment that retribution justifies? Within that range, instrumental reasons can then be brought into play in determining the sentence.

 

Worboys

John Worboys was convicted of nineteen offences, including one count of rape.  He is however believed to have committed more than 100 rapes and sexual offences on women between 2002 and 2008. He has served over 10 years in custody, including a period on remand. After a parole board hearing in November his release was approved, subject to stringent licencing conditions. The trial judge had given Worboys a 16 year determinate sentence. Prisoners are released at the halfway stage of their sentence, hence eight years would be the ordinary point of release.

 

Imprisonment for Public Protection

Worboys was also sentenced to “imprisonment for public protection.” This enabled the detention of criminals indefinitely after the expiry of their tariff. This was introduced by David Blunekett in the Criminal Justice Act 2003, and abolished by Kenneth Clarke in 2012. This abolition was not however retrospective. Many hundreds are still detained on  IPP sentences for many multiples of their original tariff. Lord Brown, an under-appreciated member of the UK Supreme Court described this as a terrible scourge,  We are (still) living in Philip K Dick’s nightmare, but without the benefit of the pre-cogs able to tell with near certainty who will commit crimes. It is a disgrace.

 

It is government policy to release IPP prisoners where the risks they pose are manageable. The parole board have decided that this is the case with Worboys.

 

For Which Crimes?

It is only acceptable to punish people for the crimes they have been proven to have committed. We cannot punish Worboys for crimes he has not yet committed, nor for crimes for which he has not been convicted.

 

Why was Worboys tried for so few crimes, when it is thought that he committed many more?

 

I do not know the answer to this important question. There are two possibilities.

 

The first is that there was insufficient evidence to secure a conviction for other offences. A successful claim was brought under the Human Rights Act against the Metropolitan police for their failure to investigate complaints of serious sexual assaults committed by Worboys. Although this is currently subject to an appeal before the Supreme Court, this concerns the scope of the legal duty owed, there is no doubt as to the shambolic nature of the police investigationa as a matter of fact.

 

The second is that it was decided not to be in the public interest, presumably on the basis that Worboys was subject to an indefinite sentence in any event. If this was the basis of the decision, in retrospect it appears mistaken.

 

Deterrence, Rehabilitation

If then it is impermissible to punish save as justified by the crime committed, how else can we protect the public, by deterring crime and rehabilitating offenders? We primarily try to deter crime by having a police force. We seek to monitor and rehabilitate offenders after release through a publicly funded probation service. The last is only widely appreciated when it is absent,  after someone who has been released goes on to commit another offence. So much easier to lock people up.

European Union (Withdrawal) Bill

The EU (Withdrawal) Bill is a damp squib. Its effect is to repeal the European Comminities Act 1972 (clause 1), whilst leaving in place all of EU law as it was in force in the UK prior to the date of Brexit (clauses 2-6). Ministers are then given the power to make consequential regulations (clauses 7-9), as is inevitable given that some of the law currently in force in the UK is in form and substance predicated on our being members of the EU. It is hard to see what other form such legislation could take. Clause 1 is probably surplusage, as EU law will already cease to apply to the UK and hence within the UK by virtue of the ticking bomb that is Art 50. The Bill is one of re-enactment, not repeal.

 

One point of interest is that the EU Charter of Fundamental Rights is “not part of domestic law on or after exit day” (Cl 5(4)), and so is not to be brought into UK law after exit. This is potentially politically significant as the shadow Brexit secretary, Keir Starmer, has given the failure to incorporate the Charter into UK law as a reason for voting against the Bill. 

 

The Charter of Fundamental Rights

In order to understand the Charter, and its current position in UK law, it is useful to contrast the Human Rights Act. The Act implements Convention Rights into UK law in two ways. First legislation must be interpreted so as to be compatible with Convention rights.  Second public authorities must not act in a way that is incompatible with Convention rights.

 

The Charter is addressed to the institutions of the EU, and to the Member States when implementing EU law. After Brexit, its applicability to institutions of the EU will no longer be a UK concern. The Charter is not a source of any freestanding rights against member states or anyone else, other than the institutions of the EU. It does however apply to EU law. Its effect can therefore be seen as analogous to the interpretive duty in the Human Rights Act, but only applies specifically to EU law. It cannot therefore be relied upon directly, but as part of a claim or defence to expand or restrict a right conferred by EU law.

 

If the Charter were in the same terms as the ECHR no problems upon Brexit would arise. It is however, a more “modern” instrument, covering many goods and interests that the 1950 Convention does not (eg rights to personal data, integration of those with disabilities, cloning) and some social rights the Convention’s drafters balked at including (eg rights to health,  social security.)

 

One Charter right is deserving of special mention. Article 45 guarantees freedom of movement and residence for every citizen of the Union within the Member States. It must be doubtful whether Sir Keir’s new found enthusiasm for the Charter will extend to this central provision.

 

The British “Opt-out”

As the Charter applies to EU law and institutions, and not to UK law and institutions as such, the British (and Polish) “opt-out” from it, as negotiated by the then Labour government as part of the Lisbon Treaty that brought the Charter into effect, was peculiarly fatuous. It provides 

The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

As the Charter does not extend that ability with regard to any member state anyway, this opt-out meant nothing at all.

 

The Problem

The problem with the Charter is that it seems to have the vices of other human rights instruments, without the corresponding virtues. One of the central criticisms of human rights instruments is that they contravene the rule of law. Instead of detailed specifications of the duties we owe, what we find are goods or interests specified at a high level of generality that ground such duties. They not only permit but require judges to depart from the interpretation of other enactments that they would otherwise reach, based upon open textured values. This greatly increases the power (and obligation) of judges to make law.

 

It may be that we consider the resultant uncertainty and departure from democratic accountability to be justified where it forms part of an international legal order between signatory states. The European Convention is of this kind: a set of minimum standards that seek to ensure that all states meet certain standards. Incorporating such an open-textured set of values without more within a single system, such as the EU, and mandating judges to depart from the ordinary meaning of enactments based upon them, is hard to justify.

 

The Options

Upon Brexit, what are the options with respect to the Charter?

 

One option would be to apply it to all UK law and institutions. A new super-Human Rights Act. Nobody is suggesting that.

 

The second option would be to apply the Charter (presumably shorn of its embarrassing freedom of movement provision) to the re-enacted EU law. This seems anomalous. It would mean that one part of UK law was subject to a different human rights regime from the rest, based upon its historical source.

 

The third option is to do what the Labour government in 2009 tried, and failed to do, and opt-out of the Charter altogether. It is that option that the EU (Withdrawal) Bill seeks to achieve.

May’s Duty to Resign

In the New Statesman Stephen Bush, the brightest and best of the next generation of political commentators states:

 

Thanks to the Fixed Term Parliaments Act, “confidence votes” have been explicitly drawn to exclude votes on the Budget or the Queen’s Speech. A government only falls if it loses a vote of no confidence. It no longer falls if it loses a major vote, a Budget vote or even the Queen’s Speech.

This obviously increases the leverage of the DUP – and Labour’s ability to harry the government day-to-day. The DUP can hold the government up, by backing them in confidence votes. But they can also let them down by deserting them on essentially everything else to secure bigger concessions from the Conservative Party.

 

This repeats the error of thinking that the FtPA changes the duty of the Prime Minister to resign when she has lost the confidence of the Commons, and advise the sovereign to call on someone else who commands a majority.

The essential question is: What does the Fixed-term Parliaments Act fix? Does it fix Parliaments or governments? The correct answer is that it fixes Parliaments, and when a Prime Minister is under a duty to resign is wholly unaffected.

 

Parliaments and Governments

Parliaments begin when they are summoned by the sovereign. The next Parliament starts tomorrow on 13 June. They end when they are dissolved. We have had no MPs since the last dissolution.

 

Governments by contrast begin and end with Prime Ministers. So, last month the UK continued to have a government, and Theresa May continued to be Prime Minister, even though she like everyone else elected to the previous Parliament ceased to be an MP.  Blair’s government ran from 2 May 1997 to 27 June 2007, covering two and a bit Parliaments. Theresa May’s government started on 13 July 2016. This was a new government on that day, although she herself came from the same party as that of the previous government. However, in constitutional terms this is not significant.

 

May did not form a new government after the 8 June election. Her previous government continued. There was no constitutional reason whatsoever for her to pay a visit to the Queen as she was not resigning. This practice should be deprecated as its symbolism gives the indication that the matter of who can form a government is settled, when this is a matter for the Commons.

 

Conventions

Conventions are rules that are not posited. Nowhere is it set down by a figure in authority that men should not wear a hat in church. In our constitution conventions constrain those who have wide discretionary powers as a matter of law. Looking at the posited law alone, the sovereign has the power to dismiss Theresa May and call on another to act as Prime Minister. It is convention that restrains her from doing so.

 

Before the FtPA, the sovereign had the power to dissolve Parliament. By Convention, the sovereign exercised this power at the Prime Minister’s request. This Convention has gone because the legal power to which it related has gone by virtue of the FtPA. This weakens the position of the Prime Minister.

 

Before the FtPA, a Prime Minister who lost an express vote of confidence in the Commons had two options. One option was to call for a dissolution, whilst remaining as Prime Minister pending the outcome of the election. This was the course Callaghan took in 1979. The other is to resign, and advise the sovereign to call on someone who can command the confidence of the Commons.

 

The last time the latter happened was in 1924. Baldwin was Prime Minister going into the election in 1923. The Conservative party had a plurality of seats but was well short of a majority. Upon reconvening, the House debated a vote of no confidence, which was passed, causing Baldwin to immediately resign, advising the King to call on MacDonald.

 

The FtPA has removed the option that Callaghan took. This means that a Prime Minister who no longer commands the confidence of the Commons must resign.

 

What is a Vote of Confidence?

The FtPA defines the kind of motion that must be passed for an early general election. It does not define the kinds of motion that indicate that the Commons has no confidence in the Prime Minister and must resign.

 

Clearly a motion may be expressed by its terms as one of confidence. Alternatively the Prime Minister may stipulate in advance that he will treat it as one of confidence and resign (or in the past ask the sovereign for a dissolution) if it is not carried.

 

Sometimes motions are implicitly ones of confidence. The two examples of this are votes on the Queen’s speech, and Budgets. If a government cannot pass a Budget it cannot govern, and the Prime Minister must resign and ask the sovereign to call on someone who can carry a majority. However, I think the loss of a Budget vote is merely indicative: it is possible to postulate examples where the Prime Minister maintains the confidence of the House for budget, just not the budget presented, as I explained here.

 

Chamberlain

Other votes may similarly implicitly indicate a loss of confidence requiring resignation. In 1940 following the Norway debate. the government Chamberlain led actually won the vote, but with such a large defection of Conservatives to the opposition motion that it implicitly showed he had lost the confidence of the Commons.

 

What must a modern day Chamberlain do, after the FtPA?

 

The same thing. Resign. You have no choice. What does this mean for the DUP? It means that unless they wish to compel May to resign, they must support budgets.

Sources of Law

What is a source of law? To be a source is to be the originator. The source of a stream comes before the stream. The source of a leak is a necessary condition of a leak. The source of an idea is anterior to the idea.

An Act of Parliament is a source of law. An Act is constituted where a Bill passes both the House of Commons and the House of Lords and receives the Royal Assent from the sovereign. But how do we know this is so? What tells us that this is a source of law?

A beginner might naively think that there ought to be a yet further more foundational document that tells us what the sources of law in a State are. In the United States, Article 1 of the Constitution stipulates that legislative powers are vested in the Congress, which consists of the Senate and the House of Representatives. Copies of this document are on reverential display in the National Archive in Washington.

But why is the US Constitution a source of law? Is there a still yet higher document, kept in an even more secure glass box, that tells us that? If there were we would hit an infinite regress problem.

HLA Hart in The Concept of Law postulated that any system of positive law must have a Rule of Recognition at its base. This rule has as its primary function the provision of a test for the validity of a law. Examples of such rules are that a Bill that passes both Houses and receives Royal Assent is good law, or that the Constitution of the United States is valid. Such rules as they are a necessary condition of what constitutes a positive law cannot, as a matter of logic, themselves be posited. Where then do they come from?

Hart suggested, plausibly, that they arise by Convention among officials (usually judges) whereby they accept such rules. Conventions are a matter of fact and can change overtime. It is a Convention that men do not wear a hat in church. This Convention has not been posited anywhere. Although Hart was the greatest exponent of legal positivism, his account is dependent upon a rule that is not posited by authority at all.

This account works less well in relation to international law. Often there is no official or judge available to determine what international law is as no formal court has been set up to adjudicate on the matter. How did we know in, say, 1648 that the Treaty of Westphalia was legally binding? Because States by Convention treated, and treat, agreements entered into between them as binding.

Where there are multiple sources of law, the Rule of Recognition should (must?) also have rules for determining a hierarchy between them in cases of conflict. The common law, judge made law, is a source of law in the United Kingdom. It is not dependent for its validity upon any Act of Parliament. What happens when the common law says X and an Act of Parliament says not-X? The answer is that the legislation prevails. As a matter of logic, the legislature itself could not have alone validly stipulated that its Acts were to prevail. Further fine tuning is possible. So, the judges now seem to have recognised a special category of ‘Constitutional Statutes” that did not exist when I was young, which seem to have some kind of interpretive priority over other more humdrum Acts.

In the Miller decision the majority seek to meet the interpretive objections of the minority, by postulating that EU law is a source of law, and as such cannot be removed by ministerial action alone. This suggestion first came from Lord Sumption (see transcript at page 40). This seems plausible. After all, UK legislation is without doubt a source of law, and EU law has priority over it within our domestic legal order. EU law can be directly effective as soon as it is posited and is not dependent upon new legislation for its validity. It would be, to say the least, startling if ministers could, by their decisions, remove legislation or the common law as a source of law, so how could they do so with any other source?

Further, describing EU law as a source of law seems to circumvent Lord Reed’s nitpicking legalistic objections based upon the words of the European Communities Act. If EU law is a legal source it is anterior to the positive law itself, and is not determined by it.

Unfortunately, this characterisation of EU law is wrong. If the legislature passed an Act stipulating that the rules of the game Monopoly as they exist “from time to time” were henceforth to be legally enforceable, and to take priority over other rules, would that make those rules a ‘source of law’? They would not. The source would be the rule that Acts of Parliament are valid. The incorporation of the rules of the game would be wholly dependent on that rule.

Precisely the same is true of EU law within UK domestic law. It is only valid because of the European Communities Act. That Act in turn is dependent upon our Rule of Recognition in the UK. EU law is directly effective because the Act says so, and has priority over UK legislation because that is what the Act says and the judges have given effect to that. If EU law had its own freestanding validity it could not be removed even by an Act of Parliament overturning that Act.

At an international level, EU law is not dependent upon any UK legislation. But on that plane it takes its validity from the agreement between member states. It is not a new sui generis form of law.

Lord Sumption’s clever move of describing EU law as a ‘source of law’ has a strong rhetorical attraction. He was the best advocate of his generation. It is a sleight of hand.

The Vibe of the Constitution

One day I will provide a review of films for lawyers. One of the very best, that should be better known in the UK than it is, is the Australian movie, The Castle. The most famous scene is when a lawyer is asked to explain why his client should win. He cites “the Constitution.” When pressed on which particular provision of the Constitution he relies upon, he is unable to point to any specific section, but instead relies upon “the vibe of the thing”

In his dissent in the Miller decision, Lord Reed (at [177]) makes an argument that I have made repeatedly on this blog since last June

“the effect which Parliament has given to EU law in our domestic law, under the 1972 Act, is inherently conditional on the application of the EU treaties to the UK, and therefore on the UK’s membership of the EU. The Act imposes no requirement, and manifests no intention, in respect of the UK’s membership of the EU. It does not, therefore, affect the Crown’s exercise of prerogative powers in respect of UK membership… Further, since the effect of EU law in the UK is entirely dependent on the 1972 Act, no alteration in the fundamental rule governing the recognition of sources of law has resulted from membership of the EU, or will result from notification under article 50. It follows that Ministers are entitled to give notification under article 50, in the exercise of prerogative powers, without requiring authorisation by a further Act of Parliament.”

It is good that this argument, that was astonishingly not made before the High Court (see para 11) was at least put. It is based upon the express words of the 1972 Act. What is the response of the majority to it? It is on this that the result of the case turns. The key part of their reasoning is at paragraphs 78 to 81. What do they say?

The first claim is that there is a “fundamental difference” between variations in the content of EU law and withdrawal from the European Union, This is because the latter involves a unilateral action by the UK that changes UK constitutional law, whilst the former does not. If EU law were eliminated save for one directive on banana curvature, that would be fine, whilst its reduction to nothing at all would not.

This is very difficult to understand. It has no textual support as a distinction in the European Communities Act itself. The change in the application of EU law to the UK by withdrawal is mandated by EU law itself (article 50). There was and is nothing unilateral about that, it was agreed between the Member States. EU law changes in many different ways. Why is this change ‘fundamentally different’ from the others? Appeals to the long title and the side notes (para 88) of the Act might be justifiable if the words of the sections (which are the law) were ambiguous or could plausibly be said to have a meaning that they do not have on their face. They do not, and no reliance is placed upon the words of the Act. As Lord Reed states, no section in the Act states “the UK shall be a member of the European Union” or any equivalent.

Second it is said that EU law is a source of law, and not just law. It would be “inconsistent with long-standing and fundamental principle” for such a change to a source of law to be brought about by ministerial decision.

Again, this is difficult to understand. EU law has its status within UK law only because of the European Communities Act. It has no independent force in our domestic law. By contrast the common law, which is judge made, has no statutory basis. If EU law really were a source of law independent of an Act of Parliament, how could an Act of Parliament remove it from UK law? Legislation could not, for example, provide that future legislation ceased to be a source of law, nor could the legislature provide that what judges decide is no longer legally binding upon the parties without abolishing law within our legal system altogether. EU law within our domestic legal order is simply not like that. It is not an independent source of law, but is wholly dependent upon UK legislation. It is because it is not a source of law (ie anterior to posited law) that it can be removed by law.

The truth is that EU law is only effective within UK domestic law because the European Communities Act says so. It is, politely, surprising that the majority base their decision not upon the words of the Act, which in the key paragraphs they ignore, but on a rather more abstract enquiry into what they feel the right answer ought to be.

In the end, the case will probably be of little practical significance. We will leave the EU, and the dispute about what was once EU law’s constitutional status within the UK will become an historical curio. That said, and despite several attempts, I see no answer to Lord Reed’s dissent in the reasoning of the majority, and have consequently found it difficult to articulate what they are saying. Vague statements about ‘fundamental principles’ and basic ‘sources of law’ are little better than appeals to the vibe.

Review of the Year

This blog has become a vehicle for my thoughts on current legal issues, the area where I have expertise. My anonymity allows me to tackle topics that I would feel professionally embarrassed to discuss under my own name. Unfortunately, a number of people have now guessed my identity, and so this may be the last yearly review. We shall see.

The review of last year which can be found here was dominated by human rights and international law. At that time, the large legal change that appeared to be on the near horizon, following the election of a majority Conservative government, was the repeal of the Human Rights Act and its replacement with a “British Bill of Rights”. The immediate prospect for that seems to have receded as the government has other more pressing matters to deal with. It is an indication of how rapidly the world has changed that the European Union Committee of the House of Lords thought it a useful exercise to publish a report on the implications for our relations with the EU of the repeal of the Human Rights Act (which I criticised here).

(If Parliament could find time in 1943 to consider and pass the Law Reform (Frustrated Contracts) Act I cannot understand why the current legislature cannot hold more than one thought in its collective head. The primary legislation we enact seems to be in long term decline, returning to levels we last saw in the 1950s. At the same time, secondary legislation has mushroomed. Those concerned with Parliamentary Sovereignty might wish to look at that.)

The European Union

The furthest the blog has strayed from law was in relation to two posts on the European Union.

In the first I wrote in praise and defence of the referendum. I stand by that piece, even though I loathe the result of the vote. What can be said against it?

It is one of the golden rules of cross-examining a witness that you never ask a question that you do not already know the answer to. A common mistake is to ask one question too many, and receive an answer that unravels all the work that you have done before. In political terms this is what David Cameron did. But that the result turned out to be politically disastrous for him is not a principled objection to the referendum itself, anymore is the fact that it gave a result that is, I think, wrong.

More powerful objections are to the form of the referendum. No minimum majority was required, and no turnout threshold  required. However, politically I doubt this would have made any difference at all. Farage would be loudly proclaiming that a majority of one was enough, and Cameron would have gone to be replaced by a government in favour of Brexit.

If there was a mistake it was made in September 2014 when Cameron, Clegg and Miliband jointly made a “vow” to Scotland if its voters rejected independence. This vow should have included a pledge to remain within the EU so long as the voters of Scotland wished to do so. Such a pledge was politically possible, and would have locked the UK into the EU.

The most political post I have ever made was this one in praise of the EU. What I saw as a bulwark against populism, others saw as an affront to democracy. As someone who in the past has had the task of managing others in an organisation, my enthusiasm for being governed by the majority’s will is not great.

Article 50

The hottest legal topic of the year was article 50 of the Treaty of the European Union. Five days after the referendum I wrote explaining why no legislation would be required for the government to achieve our departure from the EU. I have had to return to make that argument more than once. The argument made there was eventually made on appeal before the Supreme Court, but not initially before the High Court where the government’s case was very confused, and ultimately unsuccessful for reasons I explained here. Seemingly like almost everyone, I also have a firm opinion on whether article 50 can be reversed.

I am unrepentant in my views, but the clear consensus among legal commentators is that I am wrong. On Betfair the odds on the Supreme Court overturning the High Court are very long (I have staked a fairly large sum, and have a side bet with the commentator Jolyon Maugham QC).  We shall see whether what the law is and what the judges say it is eventually coincide.

Whatever the result, the judges will be deciding the case according to their view of the law, not on whether Brexit is a good or bad thing. The last time judges were subject to the attacks we have seen from the likes of the Daily Mail (criticised here and here) was in the 1970s. Back then however, the allegations came from the left and not the right. 181 Labour MPs called for the dismissal of Sir John Donaldson, who was the judge appointed as head of the National Industrial Relations Court. As now, the anger was misplaced. Donaldson in ruling against trade unions was doing what legislation required of him.  Although Donaldson went on to become Master of the Rolls, his career and reputation were probably damaged by the allegations made against him. The failure of our Lord Chancellor Liz Truss MP  to defend the judiciary from the press accusations of bias is unfortunate, but it is far less significant than the criticism of the judiciary of that era.

Crime

We started the year with a straightforward explanation of why the accuser in a rape case is granted anonymity, whilst the accused is not. I also defended well-intentioned but deeply foolish attempts to restrict the evidence an accused may rely upon to defend himself here.

More interesting is the discussion of the law on assisting crime, properly and radically changed by the Supreme Court in Jogee. The source of all confusion, which persists today, is to fail to understand that section 8 of the Accessories and Abettors Act 1861 means what it says. The accessory is convicted of the principal offence. Once that is grasped, it should also be understood that the level of culpability for the accessory should not differ from that of the principal, and may vary between offences. The judges have still not got there.

Human Rights

I am a supporter of our current human rights settlement, but a frustrated critic of the intellectual laziness of some of its defenders. Re-reading this piece on the British Institute of Human Rights, I have been too harsh. The privilege of anonymity means I should not be rude, something I shall seek to remember in the new year.

Stare decisis

Law can give rise to some very pleasing intellectual puzzles. One of my favourites is the doctrine of precedent. You can now read the decision of the Supreme Court to which that post related: the important part is paragraph 21. That paragraph amounts to a direction from the Supreme Court that the obiter dicta of the Privy Council on points of English law should be treated as binding by the courts of England and Wales. This paragraph is itself necessarily obiter dicta (as indeed is all of that judgment: the only case anywhere of which I am aware of where that is true). It will be open to the English Court of Appeal to treat that statement as binding upon it, but until it does so in forming part of the ratio of a decided case it is not (yet) the law.

Privacy

Privacy is a latecomer to the list of rights recognised at common law. I am concerned that the law has now gone too far. I can well understand that publishing information about Naomi Campbell’s attendance of a drug rehabilitation clinic was wrongful, although true. If this information is published Ms Campbell would be deterred from living her life as she would choose. It does not seem good enough to expect her to toughen up, as the law once did. However, where information about someone is already in the public domain (is there anyone who does not know who the litigant before the Supreme Court in PJS v News Group Newspapers is?) any injunction is being granted to prevent humiliation and upset, not the disclosure of privare information. Alongside the dissentient in that case (Lord Toulson), I doubt whether such misery is sufficient to justify the law’s intervention. See here, here and here

What I got wrong?

The most popular (by hits) post of the year was this on whether Article 50 will ever be invoked. My conclusion was “there are good reasons for thinking that no acceptable deal will ever be struck, and no responsible government should invoke Article 50.” Whether either of those propositions will be disproved by the current government invoking Article 50 in March of 2017 is a matter I leave to you.

Leaving the EU and the Convention on Human Rights

Theresa May suggested during the referendum campaign that she supported withdrawal from the European Convention on Human Rights. The immediate prospect of this has receded, the government is busy enough with Brexit, but how this would be done, and the difference from Brexit, is another way of showing why the High Court got the Article 50 decision wrong.

Article 58 of the Convention provides

Denunciation

1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties

Only one state, Greece under the generals in 1969, has ever invoked this provision. The relevant actor for the UK in international law is, as for all states, its government. If the UK government gave such notice, six months later the Convention would cease to apply to the United Kingdom in relation to subsequent acts and we would no longer be within the jurisdiction of the court.

 

What would be the impact in UK domestic law if that were all that were done?

 

Nothing.

 

The Human Rights Act

The Human Rights Act requires UK courts to seek to interpret legislation in a way that s compatible with Convention rights, and makes it unlawful for public bodies to act in a way that is incompatible with them. The relevant rights are set out in Schedule 1 of that Act. The UK’s withdrawal from the Convention would have no impact upon this. The Convention binds signatory states in international law. The rights we have as individuals as a matter of UK domestic law are not contingent upon their continued existence. The Human Rights Act and all the rights incorporated by it  continue to apply until it is repealed. The government cannot, through its prerogative action, overturn our statutory rights. Nowhere in the Human Rights Act is it stated that the applicable rights are dependent upon the UK’s continued accession to the European Convention.

 

If the Human Rights Act were repealed, while the UK remained a signatory to the Convention, the UK would subsequently be found repeatedly in violation of Article 13 (“right to an effective remedy”). The reason that Article is not included in Schedule 1 is that the Human Rights Act itself is what ensures that the UK has an effective remedy for Convention violations before its domestic courts.

 

The European Communities Act

The European Communities Act is quite different. It does not set out what the rights that are created under EU law that are given force are. Rather it incorporates them by reference, and they change (“from time to time”). If therefore EU law ceases to apply to the United Kingdom it ceases to be incorporated by the European Communities Act.

 

The reason why notice under Article 50, and the expiry of 2 years, operates to terminate EU law as incorporated into UK law is because that is what the European Communities Act says. The prerogative is not being used to repeal any statutory rights. There would be no need to repeal the European Communities Act at all.

 

If the European Communities Act were repealed, without notice under Article 50 being given, this would place the UK in violation of international  law: it would have broken what is now the Treaty of the European Union.

 

Fortunately, nobody rational now seems to be suggesting that as a way forward.

The Daily Mail and the Rule of Law

“The People’s Will Trumps the Rule of Law” is the cry of the fascist. The frontpages of much of today’s British press are a disgrace. That the three serious, dull, middle aged men who decided yesterday’s Brexit decision should be branded “Enemies of the People” by the Daily Mail would be laughable, if the damage to our polity were not so lamentable.

Legal Formalism

What is the kind of reasoning that a judge must use in order to decide a case of great political importance, such as the Article 50 case? The substantive issue was whether it would be better if Parliament had a vote before Article 50 was invoked, and the UK’s departure from the EU became inevitable. On that political question, I think the case for a vote is strong. The referendum was merely advisory. We live in a representative democracy. Decisions of such importance should not be taken by the government alone. I am also I find, somewhat to my surprise, a passionate Remainer. I hope that every opportunity for the issue to be debated and reviewed is explored

The argument I have repeatedly given as to why the government can invoke Article 50 without Parliamentary approval is not of that kind.  It is about the technical interaction of international and domestic law, and the words of section 2 of the European Communities Act. It is, frankly, a bit boring.

One argument against it is that it is formalistic (see here, here and here). Surely, so the thought goes, the judges should base their decision on whether a Parliamentary vote would be a good or bad thing in substance, and not on the dry words and their meaning.

Owen Dixon

I am English, but one of my legal heroes is the great Australian judge Owen Dixon. On taking his oath of office as Chief Justice of the High Court in 1952, Dixon addressed the question of how he, an unelected judge, had the legitimacy to decide the issues of enormous constitutional political importance that commonly arose in the (relatively) young new federal society of Australia. Dixon said

Close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.

Dixon was right.

That the government lost the Article 50 case is readily explicable based upon how it was its own lawyers presented its case. I think the result is wrong, but it is not wrong because a group of judicial revolutionaries have abrogated power to themselves.

We are governed by rules, not by men.