Brexit: Thank goodness for the Separation of Powers

Only yesterday, I was teaching the principle of the Separation of Powers. Derived from the philosopher Montesquieu, the concept is that there are three separate forms of state power, to be found in the legislature which makes the laws (parliament); the judiciary which interprets those laws, and determines whether or not they have been adhered to (the courts) and the executive, which implements the laws, and the decisions of courts. The idea of the Separation of Powers embraces both that these three forms of state power ought to be vested in different places, and also that they ought to operate as checks and balances each upon the others.

A development today in relation to Brexit epitomises the Separation of Powers in operation. The court has ordered the government to disclose its defence to an action brought against it, in a case which is about who has the authority to trigger Brexit.

The Government is the very beating heart of the Executive. Government ministers head up all of the great ministries of state and the civil service. Governments also have a huge influence on Parliament’s priorities, agendas and processes.

So, what is the Government’s case in all this? Is it that the people are sovereign? No. The government’s case is that it is the government alone that has been gifted the ancient authority of the monarch (from a time before we had Separation of Powers) to do exactly what it likes. Specifically, the government’s case now revealed asserts that neither the legislature nor the judiciary (neither parliament, see paragraphs 11-12 at page 6 nor the courts, see paragraphs 13ff at page 7) should have any say in its exercise of ancient royal prerogative powers. So much for the Separation of Powers and the Rule of Law! Indeed, not only was the government’s case not that the people were sovereign, the government’s case was that the people should not know what its case was (see paragraphs 5-6 of this application)! We only know that because of the success of its opponents, through the courts, forcing the government to be transparent about its views of its own powers.

Which is why I am saying thank goodness for the Separation of Powers! Wherever it may be leading, at this point in time the claimants are arguing that the legislature has a role in determining whether we walk away from our international treaty obligations as members of the European Union. The government is arguing that this is a decision for the executive alone. And the forum in which this is taking place is the courts, giving a say to the judiciary. Which means that, right now, all three branches of state are deeply enmeshed in this litigation. Which is a good thing. It means that the checks and balances the one ought to have upon the other to seem today to be operating effectively. Thank goodness that there are these checks and balances on the right of the executive to do whatever it wishes! Long may it continue!

The application was brought by Bindmans LLP, which reports and comments that the surprising submissions are,

that Parliament ‘clearly understood’ it was surrendering any role it might have in Brexit by passing the EU Referendum Act, that it has no control over making and withdrawal from treaties and that individuals can have fundamental rights conferred by Acts of Parliament stripped away if and when the executive withdraws from the treaties on which they are based.

You can now read the government’s case for why it alone neither the legislature nor the judiciary should have a role here: https://www.bindmans.com/uploads/files/documents/Defendant_s_Detailed_Grounds_of_Resistance_for_publication.PDF

And you can read the contrary case put forward by The People’s Challenge for why the legislature should have a role here: https://www.bindmans.com/uploads/files/documents/Article_50_final_corrected_and_unredacted_version.pdf

And next month, the judiciary will have its say.

Is there a heightened threat to the Human Rights Act?

This was not originally prepared as a blog, but as a Briefing Document. It has been amended for publication.

Human Rights Act – Briefing Document

1. Introduction

I have prepared this document to provide what I hope is useful information to inform the discussion that has been mooted, and placed on the agenda, concerning the future of the Human Rights Act and the potential threat to the Act. There is some element of opinion and/or reflection, but what follows is primarily by way of information. I trust that it is helpful.

2. Is There Really a Threat to the Human Rights Act?

I believe the immediate trigger for this item was a news story that the new Minister of Justice and Lord Chancellor, Liz Truss, had recently made a statement that it was the government’s intention to repeal the Human Rights Act and replace it with a British Bill of Rights. Continue reading Is there a heightened threat to the Human Rights Act?

‘Oh, for heavens sake!’ – More on Named Persons

Oh, for heavens sake!

Look, on the one hand, there are people out there who think that the State has no role whatsoever in family life. Some of them choose to live in bunkers, and I am sure there are literal and metaphorical bunkers in Scotland. Self-styled Freemen on the Land are an example of a group with no respect for the Rule of Law, and who do not recognise the role of the State. Some of them harm their children too.

On the other hand, are those who are inherently distrustful of family life. Some of them would like to keep universal databases, and the whole of the population under surveillance. Some of them point to when things go wrong in families, others dislike the family model, because they dislike the philosophical convictions of some people who live in families. Some have a commercial interest in the database and surveillance industries.

In between these two extremes, Continue reading ‘Oh, for heavens sake!’ – More on Named Persons

The ‘Named Persons’ Scheme – When Protecting Wellbeing Is Totalitarian

This post by me is also available at Pink Tape and Local Government Lawyer

Back in 2013, I was asked by the Scottish home education charity Schoolhouse HEA to provide a legal opinion on the proposed scheme to appoint so-called “named persons” to every child in Scotland. I was asked specifically to comment upon its compatibility with EU and human rights law. My opinion was that it was incompatible with both. That opinion can be read on the website of the Scottish Parliament here, and with an attractive full-colour cover on Schoolhouse’s website here.

While pretty much every legally-qualified response to the proposed scheme expressed concerns (e.g. cl@n childlaw (which became an intervener), Faculty of Advocates, Govan Law Centre,  Law Society of Scotland, Kenneth Norrie, Professor of Law, Strathclyde University, Scottish Child Law Centre – each of whom referenced Article 8 specifically), the legislation was nonetheless passed, and legal challenges to the scheme failed in the Scottish Outer and Inner Courts of Session. Thus, the case arrived at the Supreme Court, which issued its judgment today.

When you have begun believing you are simply applying well-established principles, three years of people taking a contrary view is a long time to wait. Continue reading The ‘Named Persons’ Scheme – When Protecting Wellbeing Is Totalitarian

The state of child rights in the UK reviewed

crc_logoThe body which reports on the U.K.’s compliance with the UN Convention on the Rights of the Child is the UN Committee on the Rights of the Child. Its last report was issued last month. While the recent report of the UN Committee on Economic, Social and Cultural Rights received quite a lot of media attention, with its criticisms of UK austerity policies,  children’s rights do not seem to have received the same level of attention.

Meanwhile, children’s rights have been receiving attention in a different way, in recent online exchanges over the last couple of days concerning the Children and Social Work Bill. Specifically,

I am not really convinced by urgings that we should trust civil servants and ministers in relation to children’s rights,  Continue reading The state of child rights in the UK reviewed

Brexit and Beacons

ECHR signatories
Signatories to the European Convention on Human Rights

Hmm… Just a quick one, this.

I heard Lord Lawson of Blaby last night, speaking on the ‘Outcome of the European Union Referendum’. I was very struck by the similarity of the language he used to language used by David Maxwell-Fyfe at the time of the genesis of the European Convention on Human Rights in 1950. (David Maxwell-Fyfe was the U.K.’s Deputy Chief Prosecutor at Nuremberg, and a key negotiator in the Council of Europe after the Second World War, and spoke for the U.K. at the signing ceremony). I wondered whether Lord Lawson was aware of the similarity of language and was deliberately evoking it; but what struck me equally forcefully was how the contexts were almost polar opposites. Continue reading Brexit and Beacons

Brexit and the misunderstanding of Democracy

“The people have spoken, and their wishes must be respected.” We have been hearing a lot of this recently, and not only from the majority who want to see what they voted for realised. There seems to be a broad acceptance of the proposition by the minority also.

I do not want to question democracy itself – as Churchill once famously observed,

No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…

But I do want to cast the spotlight on this curious understanding of what democracy means: that a bare majority of those voted on a particular day must prevail in the argument.

As an understanding of democracy, I think this is both reductive and insular. Reductive, because it is just not as simple as that in a modern social democracy. Insular, because it is not like that in many other modern social democracies. Somehow, it seems that winners and losers alike have caught onto a notion that the bare majority of those who voted on a particular day must prevail; seemingly unaware of the counter-arguments that regularly prevail elsewhere. Continue reading Brexit and the misunderstanding of Democracy

DoLS, floodgates, and judges who won’t play ball

Deprivation of Liberty seems to be an issue which is putting the doctrine of judicial precedent – where lower court judges have to follow the reasoning and decisions of higher court judges – under considerable strain.

Here, I document – mainly to collate the resources into one place – two recent instances of where the lower courts have been questioning the higher courts.

But actually, this is not new. Continue reading DoLS, floodgates, and judges who won’t play ball

An elephant in the room – what could an extra 26 weeks do?

The Court of Appeal has given judgment in a case where the judge at first instance delayed for 6 months between the end of the hearing and giving a decision: http://www.bailii.org/ew/cases/EWCA/Civ/2015/606.html.

As ever, hat tip to @suesspiciousmin for reading the case so that we don’t have to! His commentary is here: http://suesspiciousminds.com/2015/06/18/six-month-delay-in-giving-judgment-appeal-point/

I just wanted to say, there is an elephant in the room. Continue reading An elephant in the room – what could an extra 26 weeks do?

Age Assessment: let’s all guess together!

On 22nd May, ‘Joint Working Guidance’ on Age Assessment was published by the government, branded with the logos of the Home Office and ADCS. More guidance on age assessment is promised in the near future.

‘Age assessment’ is the misnomer commonly used for a process whereby social workers allocate a date of birth to potential service users. BASW has last week published a position statement which questions the use of the term, but more importantly warns against social workers undertaking the exercise alone.

BASW is hosting a twitter debate on this on Monday 8th June between 6-8pm. Here (that would be below, after the background section), I want to set out why I think it is indeed a nonsense for social workers to carry out single-agency age assessments. Continue reading Age Assessment: let’s all guess together!