Weekly Notes: legal news from ICLR — 12 June 2017
This week’s roundup of legal news and commentary is dominated by the fallout from the general election, which turns out to have been either a dangerous gamble or a stupid blunder, or both. We look at its effect on Brexit, crime and media policies, and other recent legal developments both here and abroad.
General Election 2017
May’s great gamble
The bare facts are these. On 18 April the Prime Minister Theresa May, having previously said she wouldn’t, announced that she was calling an election. Among her stated reasons for doing so was lack of support from other political parties for the kind of “hard” or “no turning back” Brexit her government envisaged. She said:
“At this moment of enormous national significance there should be unity here in Westminster, but instead there is division. The country is coming together, but Westminster is not. […]
“Our opponents believe because the government’s majority is so small, that our resolve will weaken and that they can force us to change course. They are wrong. […]
“So we need a general election and we need one now, because we have at this moment a one-off chance to get this done while the European Union agrees its negotiating position and before the detailed talks begin.”
In fact, since Labour had without a murmur of opposition voted in support of her sending the article 50 notification, much to many people’s surprise, there was actually substantially little opposition within Westminster: the real opposition came from the country, or parts of it: from business, academia, the professions and campaigners who were ready to put their money where their mouth was and to pursue or support the pursuit of litigation, if need be, to compel the government to respect the rights of its own citizens. The reason the article 50 notification had been delayed so long was because Theresa May’s government insisted on resisting the idea that Parliament, the restoration of whose sovereignty was supposed to have been the whole point of Brexit, should have some say in its negotiation.
Nevertheless, having lost the battle in the courts, the government grudgingly allowed parliament its say and, no doubt to the government’s intense gratification and relief, the vote in favour of sending article 50 notification was overwhelmingly carried, with but a few brave souls opposing. The triggering letter was sent to Donald Tusk, the President of the European Council, on 29 March and negotiations for the UK’s withdrawal were set to begin. All that was in place, before 18 April. Then Theresa May dropped her bombshell. Instead of getting on with preparations for the Brexit talks in Europe, the government was going to be locked down and the country distracted for the next six weeks for a snap election.
Last week, on 8 June, that election was held and the results were as follows. The Conservatives only won 318 seats (13 fewer than they had before); Labour won 262 (gaining 30); the Liberal Democrats won 12 seats (gaining four); the Scottish Nationalist Party won 35 (losing 21); the Democratic Unionist Party (DUP) won 10 seats; Sinn Fein seven, and Plaid Cymru four. The Greens kept their one, and UKIP, having already lost the only one they had, got none.
The benefit of hindsight
One imagines in these last few days, between the initial awkward shuffling of the feet as Friday dawned and the “let’s look busy” reshuffling of the cabinet on Sunday, Theresa May and her advisers must often have caught themselves thinking “if only” — if only we had a time machine, if only we could have second-guessed the sheer bloody-mindedness of the people (the ones coming together behind Brexit in the country), if only we hadn’t been so smug about the polls…
Ah yes, the polls. They had been predicting a rout. What they didn’t predict was just how well Labour and in particular their till then divisive leader, Jeremy Corbyn would perform, rallying both his party and his country behind a vision of tax-and-spend prosperity the like of which had not been seen since the 1970s. They also didn’t predict, didn’t factor in, just how badly Theresa May herself would campaign for the election that she didn’t need to call, and how disastrously some of the policies in her party’s manifesto would come across. Brexit was barely mentioned; and the awful interruptions to the campaign caused by terrorist outrages, in Manchester and London, far from boosting her reputation as someone “tough on terror”, merely highlighted the extent to which police and anti-terror resources had suffered cuts in funding and numbers in the years when she was Home Secretary.
Whatever the reasons for the Tories’ poor performance, the fact that May has not only failed spectacularly to enlarge her party’s parliamentary majority, but has actually lost even the modest but workable one she had, means she can only carry on if supported by members of another political party. The Liberal Democrats under the leadership of Tim Farron, have ruled out any further attempt at coalition with the Tories, and their former leader, Nick Clegg, who tried it once before, even lost his seat in the election.
Instead, the Tories are now wooing (if that is the right word) the Democratic Unionist Party (DUP) with a view to, at least, a “confidence and supply agreement”. Such an arrangement is not a coalition. It’s basically just a life-support mechanism that ensures the party in minority government is not defeated in no-confidence motions and is voted sufficient public funds (that’s the “supply” bit) to continue the process of government. But it comes with conditions, concessions, quid-pro-quos.
A number of commentators have been pointing out that the DUP is already mired in controversy in respect of the collapse of power-sharing in the Northern Ireland assembly and that many of its policies (eg in relation to equal marriage and abortion) are at odds with those espoused by the Conservatives. (We discuss their manifesto below.) So what might those concessions be, and how easily will the Tory backbenchers sit with them? Those are the questions which must now be resolved.
- BBC, DUP deals and dialogue: where are we now?
- Guardian, Theresa May’s plan to govern with DUP support thrown into confusion
- Meg Russell, posting on the LSE British Politics and Policy blog, Managing the new parliament: some challenges for Theresa May’s minority government
- Mark Elliott, Public Law for Everyone blog, Does the Salisbury convention apply during a hung Parliament? (The Salisbury convention usually limits the House of Lords’ capacity to obstruct legislation implementing Government manifesto commitments)
An extension of time, for a more open Brexit
However, if Theresa May can survive the next few days without further calls for her resignation (as two thirds of the readers of Conservative Home, when surveyed on 10 June, demanded), then one thing she will have achieved that she set out to do is to extend the life of the current parliament until 2020, under the Fixed Term Parliaments Act 2011. That will give her an extra two years to complete Brexit negotiations with Europe, and for that perhaps the delay in their commencement will have been worth it. But the chance of there not being at least a leadership challenge, if not another election or (dare one say) referendum by that date seems pretty slender.
Against that, there is the question of what sort of Brexit the negotiations will be for. There have been many calls for a softer line on Brexit now to be pursued. At any rate, without the stomping majority she had hoped for, May or whoever succeeds her will need to be more conciliatory and inclusive in pursuing the negotiations and considering the options. That said, the chief opposition party, Labour, already supports a hard Brexit, so whoever else gets involved, it’s going to be complicated. There has been talk of a cross-party team, but given Theresa May’s approach so far that might happen only under extreme duress. At any rate, we have probably seen the back of her mantra that “no deal is better than a bad deal”. Any deal now will need the support and approval of Parliament.
- Barrister Blogger: For the sake of party and country Theresa May should resign immediately
- Jolyon Maugham QC, on the Waiting for Godot blog, How to choose the next Prime Minister — and influence Brexit
- Andrew Grice, in the Independent, No matter who forms a government this is the end of hard Brexit
Democratic Unionist Party manifesto
We surveyed the main UK-wide national parties’ election manifestos in this earlier post. The DUP was not included but its manifesto, entitled Standing Strong for Northern Ireland (pdf), has now taken on a rather more nationwide significance since they may be the party called upon to support the minority government of the Conservative Party. Or rather, as is being rather pointedly stated at every opportunity, the Conservative and Unionist Party.
The views of the DUP that have got most attention in the media and social media are their rather puritanical ones about marriage (they apparently oppose same-sex marriage, though not the idea of civil partnerships) and abortion (they take a much more restrictive approach than in Great Britain, as do other Irish parties north and south of the border). But what do they think about other areas of policy?
A key objective seems to be the restoration or resumption of devolution, and get a budget put in place. “Stormont is far from perfect but it is immeasurably better than what happened before or what would replace it.” A lot of this depends on the response of Sinn Fein and the attainment of a “constructive” partnership, although “We will not compromise on fundamental unionist principles in order to retain power”. Five “core tests” for any power-sharing agreement are set out. Now it seems there’s an agreement with the Conservatives, as well as one with Sinn Fein, to be arranged. Negotiating on two fronts will not be easy, particularly for a party that refuses to compromise on its fundamental principles.
One of the more surprising policy initiatives relates to media law: the DUP wants to “freeze then cut or abolish the TV licence and reform the BBC”:
An independent commission should be established to conduct a review of how the BBC is structured and the services it provides and to examine alternative funding models ...
… such as subscription based streaming.
On the economy, the DUP wants to increase the living wage, protect pensions, cut energy bills for consumers and safeguard universal benefits, while at the same time “creating a globally competitive economy”.
On law and justice, there’s not much detail in the manifesto, but it expresses support for “problem solving” courts, protection of funding for the police and an increased focus on cyber crime. There’s also a proposal for the introduction of a register of animal cruelty offenders (a bit like a sex offenders register, perhaps, with consequences for future employment etc), and sentencing to reflect the seriousness of animal cruelty offences. Finally, the DUP wants to ensure the police have “all the powers necessary to seize assets of paramilitary godfathers” as well as criminal gangs.
Perhaps the most critical section, in terms of the deal with the minority government at Westminster, is that titled “Getting the best deal for Northern Ireland from the UK leaving the EU”. The DUP supports leaving the EU, but wants it done with a view to certain objectives. These include:
- Ease of trade with the Irish Republic and throughout the European Union
- Maintenance of the Common Travel Area (ie between the Republic of Ireland and the British Isles)
- Frictionless border with the Irish Republic
- Comprehensive free trade and customs agreement with the EU
- Arrangements to facilitate the ease of movement of people, goods and services
- Local input into new UK agriculture and fisheries policies
- Rights of British citizens in the EU and those from EU member states living here safeguarded
- Jurisdiction of the European Court of Justice ended and greater control over our laws restored
This suggests a rather softer Brexit than the one Theresa May was proposing, retaining much of the substance of the “four freedoms” of the single market, but pulling up the drawbridge on agriculture and fisheries and the jurisdiction of the Luxembourg court.
Finally, and perhaps one shouldn’t be too surprised by this, there’s a two-page spread devoted to a “Respect Agenda”. This is all about protecting national and local identity in a globalised world, with particular emphasis on “British symbols”, “national celebration and commemoration”, and “Ulster identities” including, predictably enough, “Orangeism”. If there’s one aspect of human rights that gets particular emphasis in this manifesto, it’s “freedom of assembly”. But one assumes freedom of religion, freedom of speech, and the right to respect for privacy and family life are also cherished. (Oh, and just for the record, “abortion” and “marriage” are not mentioned once in the manifesto.)
Now back to Westminster for the rest of today’s news.
Lord Chancellor Lidington: another new face at the Ministry
In her Cabinet reshuffle on 11 June it was announced that the current Lord Chancellor and Secretary of State for Justice, Elizabeth Truss, would be moved (in effect demoted) to become Chief Secretary to the Treasury, while in her place would be promoted David Lidington, formerly minister for Europe. Little is known about him except that he did his PhD on an obscure aspect of legal history in the 16th century; but he is not a lawyer by training or profession, and is therefore the fourth Lord Chancellor passing through the revolving door at the MoJ not to have been a lawyer. You can read more about his parliamentary voting record here on They Work For You.
Meanwhile, one of those who came out again through that revolving door, Michael Gove, who lost his job in government after unsuccessfully bidding for the leadership last year, has been summoned back into the cabinet fold as Environment Secretary.
Thanks to the research of David Burrows, we can provide some insight into David Liddington’s views on human rights in a blog he wrote to mark International Human Rights Day in 2015, entitled Justice and the Rule of Law.
The Secret Barrister has also been delving into Lidington’s past and while finding a mixed record of voting on legal issues, thinks there are grounds for cautious optimism (as indeed there were for Gove, not wholly betrayed), in this appointment. See Goodbye Liz Truss, Hello David Lidington — a brief look at the new Lord Chancellor
An interesting side-story in the general election was how little effect the constant barrage of anti-Labour stories in the right wing tabloids had on the way people ultimately voted. See, on this, James Rodgers’ post, on Inforrm’s blog, The election wot The Sun (and the rest of the UK tabloids) never won
The future regulation of the press was a matter of policy difference before the election, with the Tories promising to repeal section 40 of the Crime and Courts Act 2013 and cancel the continuation of the Leveson inquiry; while Labour and the Lib Dems were promising to proceed with Leveson 2, as it’s known, and also to inquire into questions of media ownership. Since no one has an overall majority, or convincing mandate, it seems likely that the uncertainty — and inaction — will continue.
For some insight into the kind of issue (factual accuracy in an opinion piece by a well known columnist) that IPSO doesn’t seem very good at dealing with, or getting its member publishers to address, see the Transparency Project’s latest blog post, Letter to the Editor of The Sunday Telegraph, the latest chapter in a saga over the misreporting of family law cases. See also: Seriously inaccurate reporting by omission of facts.
What does the election result mean for human rights? First and foremost, it makes it most unlikely that despite Theresa May’s threats, in the wake of the terror outrage at London Bridge and Borough Market, to get rid of any human rights laws that got in the way of fighting terror, without a working majority it will be difficult if not impossible either to repeal the Human Rights Act 1998 or to enact any illiberal provisions that would conflict with it.
The UK Human Rights blog considers some of the other implications of the election result for human rights law in Election Round-Up: Ripping Up the Rulebook on Human Rights?
Meanwhile, RightsInfo has released a short documentary film about the importance of human rights, telling the story of Mark Neary’s fight to have his autistic son Steven released from a care home, where he was being held against both of their wishes.
Prisons and Courts Bill
One of the larger bills lost in the dissolution of the last parliament was the Prisons and Courts Bill which would, among other things, have introduced reforms to the prison system and provided necessary rule-making powers and other provisions for the online or digital courts currently under development.
There were aspects of the Bill that some justice campaigners were unhappy about, particularly in relation to the use of online courts for criminal trials, as Penelope Gibbs explains on the Transform Justice blog, Post election, can we take a rain check on virtual justice?
SFO merger into NCA
One aspect of Conservative policy, as set out in their manifesto, that is now unlikely to happen is the closure of the Serious Fraud Office and its merger into the National Crime Agency. That was the opinion of lawyers interviewed by the Solicitors Journal in the aftermath of the election result: Lawyers react to shock general election result. According to Barry Vitou, head of global corporate crime at Pinsent Masons:
‘The SFO’s political independence is very important as it helps ensure that it will pursue cases even if that risks embarrassing the government or UK PLC. Operationally it is a much-improved outfit and a period of immense change and restructuring could jeopardise those improvements.
Dates and Deadlines
Lincoln’s Inn is offering funding towards the cost of attending the Advanced International Advocacy Course at Keble College in Oxford for members who undertake largely publicly funded work. The 2017 course runs from Monday 28 August (please note this is a Bank Holiday) to Saturday 2 September.
The closing date for scholarship applications is Friday 16 June 2017. For more information and to apply for a scholarship, please visit the South Eastern Circuit’s website.
Liberty — work experience
The human rights organisation Liberty is inviting people to apply for two types of work experience in London:
- Administrative support — you could be helping with the day-to-day work of our operations, membership, campaigns and/or media teams.
- Advice and Information — you need a law degree for this one, but anyone legally qualified can apply. You would be helping us respond to written queries from the public about their rights.
For more information, see their website.
Law (and injustice) from around the world
Former FBI Director James Comey testifed before the Senate Intelligence Committee on 8 June, a day after the committee released his prepared written testimony, which you can read on LawFare. The testimony concerned the events leading up to his dismissal, including his interactions with the President, Donald Trump, and the investigation into Russian links with, and influence over, the President’s election campaign.
According to The Atlantic, in James Comey’s ‘Shock and Awe’ Testimony:
Comey dropped bombshell after bombshell: The Russians are mucking around in American democratic elections, trying to change how we think, how we act, how we vote — and they will be back. The attorney general cannot be trusted to ensure impartial enforcement of the law. The president fired the FBI director and then lied about why he did it.
The problem is, with this particular President, shock and awe is the new “normal”. The more the excrement hits the ventilation rotor, the more it seems like a normal particulate of the administrative atmosphere. That’s not how the Atlantic puts it, by the way. They merely observe, wearily, that “The biggest story of the day is how unlikely this is to remain the biggest story.”
Why? Because of something called the “normalization of deviance:” the more frequently exceptional things happen, the less we think of them as exceptional. Over time, we become desensitized to events that fall far outside the normal range — often with disastrous consequences.
Also on Trump and his administration:
- CNN, House, Senate investigators seek Trump tapes, Comey memos
- The Atlantic, The Five Lines of Defense Against Comey — and Why They Failed
- The Hill, House passes sweeping bill to strip back financial rules (while everyone’s attention was diverted, the House of Representatives passed legislation to “strip and replace much of the financial regulations passed under former President Barack Obama after the 2008 financial crisis” — but “ The bill is not expected to pass the Senate”.)
Bid to fix copyright
According to SLAW, the Canadian legal information blog, University of Alberta Copyright Librarian Amanda Wakaruk is asking people to sign the petition she started to get the Canadian government to fix Crown copyright. In brief:
Canada is one of many countries stating a commitment to Open Government. It is also, conversely, one of a decreasing number of countries to retain a legal provision that gives the government the sole right to reproduce and distribute works produced for public consumption.
This “barrier to the re-use of government publications” should be removed.
“Removing copyright protection from government works made available to the public will allow individuals, corporations, and other organizations to make better use of these important resources. It will also allow librarians to continue their role as stewards of government information in a digital world.”
Reform of civil justice costs
The Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill aims to
create a more accessible, affordable and equitable civil justice system for Scotland by making the costs of court action more predictable, increasing the funding options for pursuers of civil actions and introducing a greater level of equality to the funding relationship between claimants and defenders in personal injury actions.
This month, the Scottish Parliament published the results of an Equality Impact Assessment. The Bill was introduced on 1 June and will be considered by the Justice committee tomorrow (13 June). You can track its progress on the Scottish Parliament website.
Tweets of the Week…
… come first from Lord Buckethead, a relatively new figure on the English political scene, but a dab hand at photo opportunities, it would seem.
And secondly, from Hadley Freeman:
Incidentally, it appears that Donald Trump has decided not to visit these shores, for a right royal knees-up with the Queen, unless and until the British public show themselves more appreciative of his charms, rather than mounting large scale protests. In other words, he knows where he’s not wanted, which is a tad more insight than we previously gave him credit for.
All right! That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. (He also “photo-chopped” the silly picture.) It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.