Category: Legislation and Law-Making

The prospect of “executive orders” being used by an incoming illiberal government

Spring Equinox, 2026

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Hello and welcome to The Empty City blog, the new name of which is explained here.

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Last weekend there was a news article about the Reform party which contained this passage:

“Nigel Farage’s party has promised it will enact a radical programme. One senior member said this would be modelled on the second Trump administration. The US president made many changes via executive orders rather than via Congress.”

Readers of this blog (and of my stuff elsewhere) should not be surprised by this.

Last year this blog set out how an incoming illiberal administration would have significant constitutional powers to do illiberal things with few or no checks and balances, as such legal instruments receive little or no parliamentary scrutiny.

In particular, such a new government would have the power of issuing at scale statutory instruments and other delegated legislation:

“The possibly third constitutional super-power is the sheer range and wealth of discretionary powers of the government not under the Royal Prerogative but already existing under perhaps thousands of legislative provisions.

“Some of these provisions under Acts of Parliament even allow ministers to change the law by ministerial discretion, as well as to issue statutory instruments and other instruments (such as statutory guidance) with legal effect.

“Every successive government has added more of these provisions, even if they complained about them in opposition.

And it would be open to a government under the first constitutional super-power – the doctrine of parliamentary supremacy – to add even more of these powers

“One suspects various “think-tanks” are already collating the discretionary powers that already exist, ready to arm – DOGE-style – an incoming radical and illiberal government.

“Such an incoming government would not need to break the law – for the law already will provide almost all the powers such a government could want.”

These legal instruments are not called “executive orders” – that is an Americanism.

But the sentiment is the same.

And the problem is that the current government – as with all governments whatever the parties in office – likes these legal instruments far too much to give them up.

A sensible government would prudently pass measures to limit the power of ministers to rule by fiat – to reduce the scope of discretionary powers to (for example) make, amend or repeal legislation.

But, of course, we do not have a sensible government acting prudently to make more difficult for a possible illiberal administration.

And so those who have warned about these powers and of how they could misused will only have the dubious consolation of saying “we told you so” if an incoming illiberal government uses these powers in illiberal ways.

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This post is also cross posted at The Empty City substack, which is run in parallel with this blog.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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The curious section 3 of the new National Security Act

10th March 2026

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Hello and welcome to The Empty City blog, the new name of which is explained here.

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A broad and vague provision may be a cause for concern

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Last week I was asked to write a piece on the arrests of three individuals in respect of Chinese espionage. One of the individuals was noteworthy, partly because they are married to a member of parliament. It was quite a news event and the New Statesman wanted someone to explain the relevant law.

As is my general approach, I did not mention the individuals or comment on the potential merits of any legal aspect of the case. The individuals are presumed to be innocent until proven guilty, and the recent history of espionage arrests indicate that there is a fair chance the cases go no further. The job of the responsible legal commentator in such circumstances is only to set out the applicable law.

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I assumed this would be straightforward: an exposition of section 1 of the new National Security Act 2023, which more-or-less replaced the old (and infamous) section 1 of the Official Secrets Act 1911.

But when I looked at the Metropolitan Police press release (always look at original documents when you can, rather than relying on reportage) I noticed something curious.

The arrests were not under section 1 of the new Act.

The arrests were instead under section 3 of the new Act.

Three people arrested under National Security Act Three people have been arrested as part of a Counter Terrorism Policing investigation into suspected National Security Act offences. The men [A-C] were arrested on Wednesday, 4 March on suspicion of assisting a foreign intelligence service, contrary to section 3 of the National Security Act, 2023. The country to which the investigation relates is China.

With emphasis added:

“Three people arrested under National Security Act

“Three people have been arrested as part of a Counter Terrorism Policing investigation into suspected National Security Act offences.

“The men [A-C] were arrested on Wednesday, 4 March on suspicion of assisting a foreign intelligence service, contrary to section 3 of the National Security Act, 2023. The country to which the investigation relates is China.”

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Section 3 of the new Act is in respect of “Assisting a foreign intelligence service” as opposed to section 1 which is in respect of “Obtaining or disclosing protected information”.

It is a fascinating provision, which you should read in full. In essence it provides for two similarly worded but significantly different offences.

First section 3(1):

“(1) A person commits an offence if the person—

“(a) engages in conduct of any kind, and

“(b) intends that conduct to materially assist a foreign intelligence service in carrying out UK-related activities.”

And then section 3(2) (emphasis added):

“(2) A person commits an offence if the person—

“(a) engages in conduct that is likely to materially assist a foreign intelligence service in carrying out UK-related activities, and

“(b) knows, or having regard to other matters known to them ought reasonably to know, that their conduct is likely to materially assist a foreign intelligence service in carrying out UK-related activities.”

Section 3(3) then provides (emphasis added):

“Conduct that may be likely to materially assist a foreign intelligence service includes providing, or providing access to, information, goods, services or financial benefits (whether directly or indirectly).”

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The section 3(1) offence is an “intention” offence.

If you look carefully, however, you will notice something which is not there. The person does not actually need to communicate anything to the foreign intelligence service. The person merely has to engage in “conduct of any kind” – even if not communicated.

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The section 3(2) offence is not an “intention” offence.

Here, the person does not even need to intend to assist foreign intelligence service. Indeed, the foreign intelligence service may not even be aware of it.

The conduct only needs to be “likely” to assist, regardless of intention.

They do not even need to know they are doing it, but “ought reasonably to know”.

And again there does not need to be any communication with the foreign intelligence service – the foreign intelligence service may not even be aware of it.

On the face of it, the section 3(2) offence would cover a hobbyist following foreign affairs or even a journalist, “indirectly” providing access to information on (say) their website or reportage, even if they do not intend to assist a foreign intelligence agency, but in the opinion of the courts “ought” to have known that it would assist a foreign intelligence agency.

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There are some statutory defences to the section 3(2) offence, listed at section 3(7), but these are strictly limited in scope.

Perhaps there are provisions elsewhere in this complex legislation which mitigate the potential effect of this provision – and if so I will update this page.

Perhaps the the courts will anxiously scrutinise any application of the section 3(2) offence when it impacts upon freedom of expression and the right to share and impart information on matters of topical and public interest.

(Ho ho.)

Perhaps there is nothing to worry about.

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But.

Section 3(2) is a broad and vague provision.

One can see why the government and the security services want a broad “conduct” approach which would capture any imaginative ploy used by the culpable.

But in doing this there is a risk – as elsewhere with terrorism and national security legislation – that the prosecutorial convenience of the government and the security services is at the expense of clarity and free expression rights.

It will be interesting to see how this section 3(2) offence is used in practice.

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This post is also cross posted at The Empty City substack, which is run in parallel with this blog.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Extremism, conformity, and the problem of law

9th December 2025

How the law can (attempt to) regulate extremism, but it can really do nothing about conformism.

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Let us start with this thought-provoking passage:

When I visited Auschwitz many years ago, someone in our group said that this is what happens when extremism flourishes.

Our tour guide replied:

“This place is not explained by extremism. It is explained by conformity.”

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That exchange was in a recent post by Ian Dunt, which you can read here.

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The state can have a good go at regulating extremism.

The state can seek to define it, for definitions are often the starting point for law and policy.

In the United Kingdom we have the following official definition of extremism:

Extremism is the promotion or advancement of an ideology based on violence, hatred or intolerance, that aims to:

(1) negate or destroy the fundamental rights and freedoms of others; or

(2) undermine, overturn or replace the UK’s system of liberal parliamentary democracyand democratic rights; or

(3) intentionally create a permissive environment for others to achieve the results in (1) or (2).

The types of behaviour below are indicative of the kind of promotion or advancement which may be relevant to the definition, and are an important guide to its application. The further context below is also an essential part of the definition.

If you look at the government’s webpage, you will see that this definition even has footnotes:

A definition with its own footnotes that define terms within the definition: this is serious stuff.

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The term “extremism” is even used in statutes and statutory instruments:

And once you have a term defined officially, and used widely in legal instruments, you can do legal and policy things in respect of that term:

And so we have things like the Prevent Strategy which seeks to stop extremism becoming terrorism:

And we have Crown Prosecution Service guidance which refers to extremism:

And so on.

Extremism is a bureaucratic category and, as such, a government can have laws and policies that deal seek to deal with it.

Those laws and policies may have limited or no effect, or indeed counter-productive effects, but at least the state can have a good go at addressing extremism.

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Now let us turn from extremism to conformity – the thing which the passage quoted at the head of this post warned us against:

When I visited Auschwitz many years ago, someone in our group said that this is what happens when extremism flourishes.

Our tour guide replied:

“This place is not explained by extremism. It is explained by conformity.”

What can law and policy do about conformity?

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There is perhaps nothing the law can do to counter conformity.

This is because – maybe literally, maybe logically – the law actually requires conformity.

Maybe a law against conformity is even a contradiction-in-terms, if you think about it.

One premise of law is that, well, people comply with it.

A law which sought to counter conformity would no doubt be rather self-defeating.

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The same can be said about policy: again one point about policy is that officials and the public are supposed to abide by it.

Policy, in general terms, provides what officials and the public should and should not do in certain situations. There may be exceptions in specific circumstances, but policy provides the general thrust of public action.

And on this basis, a policy against conformity is perhaps also a contradiction-in-terms, if you think about it.

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There is probably nothing law and policy can do to counter the threat of conformity.

Indeed, once illiberals and authoritarians have public power, and so can determine law and policy, conformity will reinforce illiberalism and authoritarianism.

And, as and when illiberalism and authoritarianism slide into extremism, then conformity will reinforce that extremism.

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The problem of conformity cannot thereby be solved by law and policy.

The danger needs to be addressed by other means.

And that other means is, of course, politics.

One may not be able to have a law or a policy against conformity, but one can certainly be politically opposed to it – to campaign and vote or otherwise mobilise against extremists who want to take control of the state.

And this includes resisting the temptation to conform – that is to nod-along with what is happening.

There are always extremists.

But what gives them power is not the appeal of their extremism, but the comfort others have in conformity.

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When I visited Auschwitz many years ago, someone in our group said that this is what happens when extremism flourishes.

Our tour guide replied:

“This place is not explained by extremism. It is explained by conformity.”

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Two small liberal steps forward, against the gale of illiberalism

23rd June 2025

Why the parliamentary votes on abortion and assisted dying are welcome – and significant.

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The first thing to assert is that no law has yet been changed by the recent parliamentary votes on abortion and assisted dying . The applicable law today is as it was last week. Votes on bills as they go through parliament do not have legal effect until that bill, by regal legal magic, becomes an Act of Parliament with royal assent.

But.

The parliamentary votes on abortion and in assisted dying are significant and, from a liberal perspective (and this is a liberal legal and constitutional blog), welcome.

They are significant because they (well) signify a change – a break with the hitherto settled law and policy in these areas.

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In respect of abortion, the key provisions currently in force are in this Victorian legislation, from 1861.

Removing these provisions from the statute books does not, notwithstanding some media coverage to the contrary, legalise abortion. It will still be a criminal offence for a second person to perform an unlawful abortion.

The removal of these provisions, however, would de-criminalise self-induced abortions, where there have been some extraordinarily moving recent cases where the offence has been prosecuted – for example here:

“Though the offence itself was a serious one, and crossed the custody threshold, this was, as we said at the hearing of this appeal, a very sad case that called for compassion, not punishment. And it was one where no useful purpose was served by detaining Ms Foster in custody.

“After assessing harm and culpability, our provisional starting point was one of three years imprisonment, which was reduced to one of 18 months having regard to mitigation, and then to one of 14 months after giving Ms Foster 20 per cent credit for her plea. The length of this sentence meant it could be suspended and we considered that it should be suspended. We have already referred to the exceptionally strong mitigation. Rehabilitation had already been achieved. Ms Foster presented no risk to her family or the wider public, and there was no prospect of a repetition of this offence. By the time of the hearing before us, it was obvious that custody had had a severely detrimental effect on Ms Foster and on her family. The rehabilitation activity requirement of up to 50 days provided her with an opportunity for various interventions in relation to the offence, designed to assist her, including counselling.”

It was monstrous that the defendant in that case, and in similar cases, was ever prosecuted. But such prosecutions were (and are) always possible while the 1861 offences remained (remain) the law of the land.

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In respect of assisted dying, there are – of course – different views, and many of those opposed to its introduction are sincere and serious.

The perspective of this blog, however, is based on two points – one in principle, and one practical.

The principle is that of self-autonomy: that, as far as possible, it should be for the individual to make decisions about their own lives.

And so the preferences of someone facing an otherwise unavoidably agonising death should be accorded respect and, if possible, given effect.

There is the potential for misuse for others, but this is not itself a reason in and of itself to deny the preferences of someone facing an otherwise unavoidably agonising death to end their own life on their own terms.

It is instead an argument for preventing those abuses, and not for denying the choice to those who want to make that decision for themselves.

The practical point – which often seems missed in the discussion about the proposals – is the that the status quo is itself unsatisfactory, and based on the uncertain but generally widening discretion policy of prosectors on whether to prosecute. At the moment assisted dying to can and does escape prosecution but at the cost of unimaginable legal anxiety to those concerned.

If this proposal – set out in this private members bill which, as Ian Dunt explains, has been impressively piloted through the Commons by Kim Leadbetter MP – is defeated in the House of Lords, as some opposed campaigners are now urging, then this dire status quo will continue – and without any of the safeguards in the bill.

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Given the force of the illiberal winds blowing through the United Kingdom and the United States, and elsewhere, the sensible decriminalising of people facing the horrible decisions and actions set out above, is a boon.

One may have moral views against abortion and assisted dying, but the intervention of the criminal law in these situations often makes dreadful personal situations far worse.

Neither change is yet on the statute book – and there are those who will work hard to make sure they do not get enacted.

But for the House of Commons to even pass such measures in draft legislation is an important moment.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy

24 September 2024

Over at Bluesky, the German writer and historian Helene von Bismarck, an acute observer of British politics, posted this interesting question:

“One question I have been asking myself for many years about UK politics: Why does it – regardless of who is in government – appear to be this hard to solve problems & get things done? Schools, the NHS, defence procurement, etc. Lack of money, you (probably) say. But surely this isn’t all of it?”

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One answer, of course, is that there is a lack of accountability.

On the face of it, however, there is a great deal. of accountability in the politics of the United Kingdom.

There are general elections, where the government of the day can fail to obtain a majority – as in 1997, 2010, 2017 and 2024 – as well as by-elections and regional and local elections which often (are said to) give governments a ‘bloody nose’ (or something).

And between general elections, Prime Ministers can come and go – as in 1990, 2007, 2016, 2019, and 2022 (twice).

And then, at the levels below Prime Minister, ministers come and go, often with undue frequency.

We also have the theatres of Prime Ministers Questions and the various political shows on television and the radio (and increasingly with podcasts), and we have a well-connected and ambitious lobby of Westminster journalists.

And so, superficially at least, we have a near-constant buzz of accountability – almost all day, every day.

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But.

If the word “accountability” is taken to mean (as it should be) that the accountable person can be required to give an account of what they are doing, then things look rather different.

For in the United Kingdom we have a great deal of political accountability, we have far less policy accountability.

And by policy, it is meant the formulation, implementation and administration of things by government.

The theatres of political debate and discussion do not often go to the substance of policy – and often policy only seems relevant to the extent that it offers a ready “gotcha” against a hapless or hopeless minister.

The lobby system of journalism – and there are some outstanding lobby journalists – necessarily requires a focus on the politics of Westminster, rather than on what is happening in Whitehall – and still less on what is happening outside SW1.

The doctrine of individual ministerial accountability provides a mutually beneficial pact where a minister can (plausibly) say that they were not aware of something while officials escape routine accountability for what they do.

Parliamentary questions are easily evaded either in written or oral form, with no sanction for tardiness or non-compliance.

And as for Freedom of Information, the departmental section 17 letters refusing disclosure are perhaps the most dismal and insincere – if not outright dishonest – official documents in the history of our domestic bureaucracy.

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One illustration of how weak policy accountability is in the United Kingdom are the now (all too frequent) public inquiries.

These inquiries – sometimes long after the events being investigated – often do little more than what could have been done at the time, if the organs of the state had had the necessary powers and the requisite will.

To take one glaring example: the Covid inquiry is forcing politicians and officials to give an account – ie provide accountability – about everyday decision- and policy-making during the pandemic.

This should have been done in and by parliament at the time.

Many revelations that come out of that and other inquiries is an indication of the weakness of our traditional forms of accountability.

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Why is all this so?

Part of the reason is legal(istic) – inquiries have formal legal powers which are not generally available to (say) parliamentary committees and still less available to journalists.

But the main reason is there is no real incentive for government and parliament and officials and the media to have it any other way: no careers will be benefited, there is no electoral advantage, there are no extra viewers or listeners, and there no more newspapers sold (or fewer copies left unsold).

And the primary reason for this lack of incentive is, well, us.

If voters (and viewers and readers) wanted more real-time policy accountability then there would be career, commercial and/or electoral advantages in there being more policy accountability.

But that would mean us taking policy seriously, which is dull and complicated.

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There are, however, grounds for some optimism.

Parliamentary select committees – especially in their online manifestations – are becoming increasingly impressive in what evidence is made publicly available in their ongoing inquiries.

The House of Commons library also make their outstanding briefings available to the public as well as to parliamentarians.

The decline in specialist journalists is – though only to a limited extent – being offset by specialist commentators – on Substack or elsewhere.

But, even taking all these positive points at their highest, there is generally little or no incentive for there to be real accountability, as opposed to superficial (and theatrical) accountability.

And so the massive policy problems identified by von Bismarck in her post do not have ready solutions – though, no doubt, there will one day be a scathing public inquiry about each of them.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Seven changes for a better constitution? Some interesting proposals from some good people.

24th June 2024

In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.

One of the signatories, David Anderson, helpfully posted the letter on Twitter:

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Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.

But, there has to be a start somewhere to repair the damage, and these are interesting proposals.

The suggestions appear to be:

  • independent enforcement of a new ministerial code;

  • establishing new systems for managing conflicts of interest;
  • ditto, for lobbying;
  • improving regulation of post-government employment;
  • ensuring appointments to the Lords are only made on merit;
  • ensuring other public appointments are rigorous and transparent; and

  • strengthening the independence of the honours system, including by ending prime ministerial patronage.

The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.

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Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.

Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.

But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?

The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.

In a word: there needs to be tension.

And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Of majorities and “super-majorities”

21st June 2024

The greatest prize that the constitution of the United Kingdom can bestow is a substantial parliamentary majority at a general election.

With such a majority you can be confident to pass major legislation, not worry too much about backbench opposition, and even face down the House of Lords.

And so one of the most remarkable things about the current government – which brought about its own emphatic general election victory in December 2019 by (among other things) “Getting Brexit Done” is how little use it has made of this great prize.

Some people are suggesting that after this next general election (in less than two weeks now) the Conservative may now be out of government for a very long time. Who knows? But if so, that will be a lengthy period for the politically-right-of-centre to kick themselves for not having used their chance to drive through fundamental reforms when they had it.

Many people would find it difficult to name – other than Brexit – one fundamental reform which current government has driven through with primary legislation. The last few Queen’s and now King’s speeches have been limp affairs.

All that political and legislative power – as close to absolute power that our constitutional arrangements can admit – and nothing, or close to nothing.

Given that part of the reason for the Brexit referendum and for then “getting Brexit done” was for the political advantage of the Conservatives, it seems odd. What was the (party political) point? All that chaos and dislocation, for this?

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In the early 1990s the Conservatives lost their overall majority under John Major and then were out of office from 1997 – and in a long haul, and via a coalition, they eventually gained an overall majority only in 2015.

They promptly threw that away in 2017.

They then exploited an exceptional political situation in December 2019 and got that majority back, and then did nothing much with it.

And now that second chance at an overall majority is about to end.

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Over at Prospect – please click here to read – I have done a post on the fears of a Labour “super majority”.

But what Tories should fear is not the use of a “super majority” but just the effective use of a sustainable and substantial parliamentary majority.

And that can be quite the forceful thing, not that the outgoing government ever really cared to use it.

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The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act?

12th June 2024

As each party manifesto is published online, and for my own easy amusement, I like to search the pdf for words like “enshrine” and “clear”.

And after that easy amusement, I look for more serious things.

Yesterday the Conservative manifesto was published.

(Many “clears” but disappointingly only one “enshrine”.)

What were the Conservatives were promising (threatening) this time for the Human Rights Act?

 

Doing something to this Act has been a mainstay of every Conservative general election manifesto for as long as I can remember.

But the search return was…

…0/0.

I am a clumsy typist and so I thought: a typo. Let me try again.

And it was still a nil return.

Something must be up with the search function, I thought.

And so I tried “ECHR”.

I even typed out in full the “European Convention on Human Rights” and the “European Court of Human Rights”.

Nil, nil.

How odd.

Could it be that the manifesto actually did not threaten the Act or the Convention?

Well.

A closer look revealed one fairly oblique mention:

Of course, the European Court of Human Rights is not meaningfully a foreign court: it has British judges, British lawyers can appear, British residents can petition the court or appeal cases there, and its caselaw can be relied on in our domestic courts. Foreign law usually is a matter of expert evidence, but Strasbourg case law is part of our own jurisprudence.

It is an international court, of which we are part, rather than a foreign court.

But that is by-the-by.

What is significant is not this sort-of commitment, but the lack of any other promises (or threats).

It is an astonishing, unexpected absence for a Conservative manifesto – perhaps the manifesto equivalent to leaving a D-Day commemoration early.

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Over on Twitter, Adam Wagner noticed the same:

Of course, it must be noted that government has recently been disapplying the Act on a statute-by-statute basis, rather than making any full frontal attack.

But even taking that point at its highest, one would still expect an explicit manifesto commitment just for the claps and cheers of political and media supporters.

And this is a governing party that needs all the claps and cheers it can get.

It is a remarkable omission.

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And one suspects it is an accidental omission, for the governing party has little to gain by leaving it out, and something to gain electorally (or at least hold on to) by leaving it in.

If so, the possible significance of the omission is that the Conservative leadership, having got bored with the pretence that the Act will ever be repealed or substantially amended, simply are not thinking about it any more.

Their minds have moved on to other “red meat” for their more illiberal supporters.

But what it also means is that, in the highly unlikely event of the Conservatives staying in government after 4 July 2024, there is no manifesto commitment they can rely on in forcing any changes to the Act through the House of Lords.

What that in turn means is that the Human Rights Act will now be safe for the lifetime of the next parliament, whatever happens at the general election.

And that itself is quite a thing.

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How the government is seeking to change the law on Rwanda so as to disregard the facts

30th January 2024

The decisions of judges, other than about case and court management, can be divided into two sorts.

First, there are rulings. These rulings can be about the substantive law, or they can be rulings on the admissibility of evidence, or they can be rulings on procedural technical points. In each instance, the judge will identify the rule, apply it to the situation before the court, and decide the outcome.

Add second, there are findings. These are determinations of fact which are required for the case before the court to be decided at a trial. These facts are, in turn, based on the evidence admitted before the court.

If there is no dispute, then a judge can make a finding of fact based on the undisputed evidence before the court; but if there is a dispute of fact then the judge has to weigh the conflicting evidence and make a finding.

The judge will then apply the rules to the facts found.

(In a criminal trial – and some civil trials – where there is a jury, it will usually be the jurors that will determine any disputes of fact and thereby any consequential legal liability.)

A reasoned judgment by a court deciding a case can include both types of decision; though in a straightforward case there is normally only a dispute of fact.

The key point for the purpose of this post is that rulings and findings are different.

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Now let us go to the Supreme Court judgment on the Rwanda policy.

The court set out the statutory criteria for determining whether Rwanda is a safe third country (emphasis added):

“A country is a safe third country for a particular applicant, if:

“(i) the applicant’s life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country;

“(ii) the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention;

“(iii) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected in that country; and

“(iv) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country.”

*

After a detailed examination of the evidence, ultimately the Supreme Court decided (again emphasis added):

“As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. The right of appeal to the High Court is completely untested, and there are grounds for concern as to its likely effectiveness. The detection of failures in the asylum system by means of monitoring, however effective it may be, will not prevent those failures from occurring in the first place. We accept the Secretary of State’s submission that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up. Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were. The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings.”

In other words the Supreme Court made a finding of fact based on the evidence placed before it. The evidence “established” a thing, and that thing in turn determined the case.

*

Let us now look at the government’s Rwanda Bill currently before the House of Lords on its passage through parliament.

Here is clause 2 (note a Bill has “clauses” as it passes through parliament, which then become “sections” when it becomes an Act):

You can see what the government is seeking to do.

Instead of it being a matter for a court to decide whether Rwanda is a safe third country, the Bill removes that discretion absolutely – regardless of any evidence. Indeed such evidence may not even be relevant with this deeming provision.

A court will not be able to make its own findings, it “must conclusively” decide Rwanda is safe – whatever the actual facts.

*

And now let us go to a speech in the House of Lords from the former Conservative Lord Chancellor Kenneth Clarke:

According to Hansard, Clarke said:

“[Ministers] have decided to bring an Act of Parliament to overturn a finding of fact made by the Supreme Court of this country.

“If we pass this Bill, we are asserting as a matter of law that Rwanda is a safe country for this purpose, that it will always be a safe country for this purpose until the law is changed, and that the courts may not even consider any evidence brought before them to try to demonstrate that it is not a safe country.

“That is a very dangerous constitutional provision. I hope it will be challenged properly in the courts, because we have an unwritten constitution, but it gets more and more important that we make sure that the powers in this country are controlled by some constitutional limits and are subject to the rule of law.

“Somebody has already said in this debate that Parliament, claiming the sovereignty of Parliament, could claim that the colour black is the same as the colour white, that all dogs are cats or, more seriously, that someone who has been acquitted of a criminal charge is guilty of that criminal charge and should be returned to the courts for sentence. Where are the limits?

“As time goes by in my career, I always fear echoes of the warnings that Quintin Hailsham used to give us all about the risks of moving towards an elected dictatorship in this country.

“The sovereignty of Parliament has its limits, which are the limits of the rule of law, the separation of powers and what ought to be the constitutional limits on any branch of government in a liberal democratic society such as ours.”

*

Yes, Clarke had at best a mixed record as Lord Chancellor – especially in respect of the severe funding cuts to legal aid.

But he is absolutely right to set out, with first principles, the fundamental danger this bill presents.

The government should leave findings of fact to the courts – and if the court’s findings are unwelcome, then ministers should work to change the facts.

Using the law to deem a country safe which the Supreme Court found to be unsafe after a detailed examination of the evidence, is an unwelcome move by this government.

And even a former Conservative Lord Chancellor can spot this.

 

 

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“Computer says guilty” – an introduction to the evidential presumption that computers are operating correctly

30th September 2023

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.