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Banks v Cadwalladr: Shining a Torch in the Darkness

Published by Anonymous (not verified) on Tue, 14/06/2022 - 3:31am in

Peter Jukes looks at the precarious persistence of investigative journalism in Britain – especially when it comes to Russia, Trump and Brexit – and the importance of the public interest defence

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Even though I had little doubt Observer journalist Carole Cadwalladr had a great defence against the libel suit brought by the Leave.EU backer Arron Banks, the night before the judgment was handed down by the High Court was still a sleepless and troubled one. 

Through the five years I have personally known Carole and followed her award-winning investigations into Cambridge Analytica, Facebook and Russian interference in the Brexit and Trump votes, there had been very little in the way of justice. 

Back in June 2018, when I first obtained the tranche of emails between Arron Banks, his head of Communications Andy Wigmore and various figures at the Russian Embassy during the Brexit and Trump campaigns, I knew this was way beyond the one “boozy lunch” Banks had admitted to his book The Bad Boys of Brexit. These emails became the basis for several co-written articles in the Observer, and various follow-ups of Banks’ connections to Russia in The New York Times, the Washington Post and on Channel 4 News. 

Those articles and programmes still stand. For the past two years, neither I, nor any of those august news organisations, have been sued for libel and threatened with financial ruin or public disgrace. Only Carole Cadwalladr has had to suffer that ordeal for 24 words she uttered in a 15-minute TED talk:  “And I am not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian Government.”

I barely noticed those lines at the time. It seemed quite simple. Banks has constantly changed his story about the number and content of his meetings with the Russian Embassy. As for “not even going to go into it”, all I took Carole to mean was that Banks’ reasons for being evasive were unknown. Carole has never once said Banks financially benefited from the multiple meetings with the Russian Embassy. Indeed, one of the first things she said to me after seeing the email exchanges about gold consolidation deals and diamond mines between Banks and the Russian Ambassador was: “There’s no sign he received any money.”

British libel law, however, does not rely on intention but on what an average listener would have understood. At a preliminary hearing over ‘meaning’ three years ago, Mr Justice Saini ruled a reasonable listener would understand that “Banks told untruths about a secret relationship he had with the Russian Government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding”.

It was a blow. Since Carole had not intended that meaning, she couldn’t provide evidence that Banks illegally accepted foreign funds. The truth defence would no longer work. 

She and her legal team had no choice but to opt for the public interest defence: in other words, even if people understood a false defamatory meaning from her words, this was defensible given the enormity of the issues at stake. 

British libel law is difficult for journalists and so encouraging for rich would-be claimants that many overseas citizens pursue cases in the English courts (even on words which are barely read here) because the costs and the burden of proof are so chilling that publications are more likely to capitulate, issue an apology and pay damages. It’s one of the reasons why the late Sir Harry Evans told me he preferred working in the US, where the burden of proof is on the claimant rather than the journalist. 

In general, every journalist wants to tie down every fact and meaning so they can have a truth defence. In that dream scenario, lucid information is clearly at hand so one can lay out all the story in such forensic detail no challenge is possible. But, in the messy real world, investigative journalism isn’t like visualising a vast spreadsheet or dissecting a body on an autopsy slab. The subjects of your investigation are either surly, aggressive, deceptive or silent. It’s less like a post-mortem or data crunching exercise than shining a torch in the dark while others try to wrest the torch from your hand. 

That’s the reality for most journalists taking on organised crime, rich business people or collusion between oligarchs and their political placemen. You get a fraction of the truth and you pose questions and have to raise inferences, in good faith, hoping you are not misunderstood. When it comes to the hard edge of investigative journalism, the public interest defence is one of the last redoubts for those taking the risk of raising matters of urgency and import. 

Essentially, the public interest defence means that, even if the meaning of a statement is potentially inaccurate or defamatory, there is an added protection if those statements – whether they concern high-profile policy decisions or the use of public money – speak to matters of high importance, and are published responsibly with an opportunity to comment. 

Given that Banks is the largest-ever political donor in British history, loaning and donating at least £8 million to Nigel Farage’s Leave.EU campaign, it is not hard to see how his undisclosed meetings with the officials of a hostile foreign power – especially in the controversial and momentous result of the 2016 EU Referendum – wouldn’t be in the public interest. 

As Gavin Millar QC said, summing up for Carole Cadwalladr, the TED talk was “unquestionably speech which addressed the matters of the greatest possible importance to the organisation of the political life of the country. Indeed, it is difficult to conceive of matter in which the public interest could be greater”. 

Since the failure of his libel case, Arron Banks has said he is considering an appeal, and has tweeted “I won the only thing that mattered – Brexit” – thereby underscoring that this was always about politics rather than personal privacy and reputation. Banks has made himself a political figure who has used his money to affect the lives of all of us. 

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Over the past four years, Banks and Wigmore have defamed me on several occasions, claiming I had hacked his emails or used blackmail to obtain them (Justice Steyn dismissed these claims). But such is the political importance of those Russian meetings, I’m not going to use the law courts to dispel his misrepresentations of my work. I’ll use the public sphere to appeal to the court of public opinion. 

Back in 2018, the suspicion of Russian interference in British elections was mocked by many from the left and right. It has since been underpinned by US congressional reports and confirmed by parliamentary select committees. Even Boris Johnson conceded Vladimir Putin tried to interfere in British elections, only adding that he had not ‘successfully’ interfered. Since Russia invaded Ukraine in February, Byline Times has produced official US military investigations that assessed that Brexit was part of the Russian President’s greater strategic plan.

None of this matters to the legal defence of Carole, or her reasonable belief in the public interest ‘at the time’. But it surely matters to the country, and to the future resolve of investigative journalists who would follow in Carole’s footsteps. 

Since Banks is claiming Brexit as his brainchild, we should be allowed to ask how financially ruinous it has been for the country. If he had been victorious, this would not only have been ruinous to Carole financially, but would have chilled any further investigation into Russia’s role in Brexit. 

But the cost of this victory has been too high and no individual should have to suffer over two years of such an ordeal. 

The law should provide for a quicker strike-out for public interest cases. It should ensure defamation cases proceed from the substantial moment of publication (for example in the Observer) rather than consequent remarks made by the journalist.

I have seen firsthand the psychological isolation Carole has suffered without the backing of a publisher, not to mention the constant threats and trolling on social media and the silence of many of her peers. Justice Steyn wrote that she didn’t think Banks’ claim was a SLAPP (strategic lawsuits against public participation) case but there is little doubt that this protracted libel case has had the effect of silencing a prominent investigative journalist for over two years.

As Carole herself commented after the judgment, “my investigation into Brexit, Cambridge Analytica and Facebook triggered investigations on both sides of the Atlantic, record-breaking fines and findings of multiple breaches of the law, including by Mr Banks' Leave.EU campaign. But I am the only person to ever face trial”.

What kind of country are we where no good deed goes unpunished; in which journalists are hounded for exposing wrongdoing, while the political and media class either applaud or sit on their hands? 

We need those torches shining in the darkness, even if they flash across our minds with incomplete or partial impressions of the bigger picture. Because, without those shining a light, however small and flickering, we would never see anything. Our democracy would die in the darkness. And the costs of getting the small things wrong should never be at the expense of getting the big things right. 

Peter Jukes is the Co-Founder and an Executive Editor of Byline Times

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From Rwanda to Northern Ireland: The Failures of the Government Legal Department

Published by Anonymous (not verified) on Tue, 14/06/2022 - 3:09am in

Barrister Gareth Roberts assesses the breakdown in respect for the rule of law within Downing Street

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This summer may well end up as the busiest and most significant for a branch of government that is rarely in the public eye but the influence of which is felt by every other department before, in turn, touching the lives of everyone else: the Government Legal Department. 

The Government Legal Department is there to offer advice and opinion to ministers and departments on every aspect of law and public policy. 

As every law student is told, legal opinion has to be objective, honest and legally sound. Lawyers are not there to provide lip-service for their clients – we are not allowed to make up a defence where no defence exists, we are not there to tailor facts or evidence to suit a particular position that our client wishes to take. Nor are we allowed to deliberately misinterpret the law or try to bend the rules. 

This is the same for every lawyer, whether they be the exhausted duty solicitor who is providing advice in the middle of the night to people caught drink driving, or the Attorney General. 

The Government Legal Department is a prestigious arm of the profession – the government, traditionally, has attracted the best and the brightest lawyers around – and rightly, because the legal advice that underpins public policy is fundamental to any democracy. Government lawyers, perhaps more than any other, must have the ability to give advice that is legally sound to individuals who may not like what they’re being told.

Indeed, ministers are politicians and by definition are ambitious – they care desperately about their own agenda and their own career. It can’t be easy telling a minister that the policy they have proposed may be unlawful.

Traditionally, the Government Legal Department would be involved at an early stage in the development of a new law or a public policy – indeed when I was a researcher working on the opposition benches in the 1990s, it wasn’t unusual for the Government Legal Department to offer advice on plans or proposals being proposed by politicians who were not even in Government, to ensure that their proposals were lawful.

It was taken as read that when a bill was put on the floor of the House of Commons, or a minister stood up at the Despatch Box to make a statement about policy, a lawyer had reviewed it and given honest, independent advice as to its lawfulness. 

It is rare that the public sees or hears legal opinion. The convention is that legal opinion is not disclosed outside government – which is another reason why we must be absolutely confident that this legal opinion is objective and correct. 

Perhaps the first time many of us had reason to question the legal opinion given to ministers came during the run-up to the invasion of Iraq. It appeared that in its desire to support the Americans and invade the country, Tony Blair’s Government was prepared to put undue pressure on its own lawyers. Thus led to the then Attorney General, Lord Peter Goldsmith, changing his legal opinion on the lawfulness of invasion, something for which he was criticised in the Chilcot Report, describing the advice as “far from satisfactory”.

The repercussions of that poor advice are still reverberating.  

Professional and Political Obligations

Boris Johnson has never risked overly burdening himself with the finer points of law or the constitution. 

From his first days in office, when he tried to unlawfully prorogue Parliament in an attempt to pass his Brexit deal, it was clear that he was not interested in the question of whether his policies and activities were within the bounds of either convention or the law. 

Since then, the Prime Minister has continued to act in a way that suggests he either doesn’t care about or doesn’t understand the laws of the land. 

The policy of transporting asylum seekers to Rwanda was announced by the Home Secretary in April, following a deal struck between the British and Rwandan governments in Kigali. The United Nations was not consulted at any stage during the negotiations despite the fact that any such agreement would impact upon the UK’s obligations under international law and the Convention and Protocol Relating to the Status of Refugees, to which the UK is a signatory. 

At the time, the Rwanda policy was deemed by many to be a political stunt – an attempt to throw a bit of ‘red meat’ to the right-wing forces in the press and on the Conservative backbenches. Many assumed that once the policy was considered carefully and the lawyers were given the opportunity to offer an objective opinion, it would be quietly shelved. 

But it hasn’t been.

Indeed, with every attempt to expose the policy for being a shameless and immoral act of political opportunism, Home Secretary Priti Patel – who has consistently derided during her time in high office – has dug in further. Now, despite opposition ranging from the Church and (seemingly) the Royal Family, to specialist refugee charities, planes are sat on the tarmac poised to take refugees to central Africa. 

The United Nations High Commissioner for Refugees (UNHCR) has made it clear that the deal with Rwanda is in contravention of international law, the UK Government disagrees, and the matter will ultimately be decided by the High Court in July. 

As a lawyer, I find it extremely difficult to foresee circumstances in which I would advise my client that the organisation existing to oversee the law pertaining to the status of refugees – the UNHCR – is wrong about the interpretation of its own protocol. 

I also hope that if I was placed under pressure to change that opinion, I would stick to my professional obligations.

The Northern Ireland Protocol is another area where the law courts will be called upon to offer important adjudication. 

Again, the Government seeks to act in a way in which appears to involve a breach of the law – this time, its obligations under both the Good Friday Agreement and its Brexit agreements with the European Union.  

A bill is due to be put before Parliament in the coming days, and one assumes that at some point this bill will have been scrutinised by the Government Legal Department and opinion sought as to whether its enactment will be a breach of international law. Again, it is inconceivable that that won’t be the case. 

Sadly, for this Government, short term political survival is far more important than national or international law.

In his private and public actions, the Prime Minister has consistently demonstrated that he views the law as an encumbrance that must either be ignored or bullied into passive compliance. 

This is profoundly dangerous. 

For the UK, which has no written constitution and relies upon a set of archaic conventions to keep the government in check, the role of the Government Legal Department to set out the law properly and dispassionately is absolutely vital.

If it stops doing that or is cowed into a role where it simply tells the Prime Minister what he wants to hear, then we the people risk losing a vital weapon in our ability to keep our government in check.    

Gareth Roberts is a barrister

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What Is Being Misconstrued About the Banks v Cadwalladr Case

Published by Anonymous (not verified) on Tue, 14/06/2022 - 2:38am in

Sam Bright unpicks the spin surrounding the high-profile defamation judgment

A momentous legal case has seen a judgement today, with political campaigner Arron Banks failing in his libel suit against investigative journalist Carole Cadwalladr, regarding claims about the former’s alleged links to Russia.

The case has taken nearly three years to reach this verdict, which has been accompanied by frenzied online debate about the culpability of those involved.

Today, despite Cadwalladr’s victory, prominent commentators and outlets sympathetic to Banks have suggested that the journalist admitted her falsehoods – thus ultimately, they say, proving her reporting was false and unjustified.

However, this is a misrepresentation of the case.

The judge came to an initial verdict in December 2019 about the meaning (referred to as the ‘single meaning’) of Cadwalladr’s statements – determining that a reasonable person would have understood them to mean that: “On more than one occasion Mr Banks told untruths about a secret relationship he had with the Russian Government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding.”

While the judge decided that this was the implication of Cadwalladr’s remarks, the journalist says that this was not her intention. Below are her original remarks in relation to Banks:

Therefore, given that Cadwalladr was being asked to prove claims that she did not intend to make, she made an apology to that effect, saying: “It was not my intention to make any such allegation and I accept that such an allegation would be untrue.”

As the judgment notes: “Ms Cadwalladr gave evidence that ‘there was no evidence’ that Mr Banks ‘had gone through with the deals’ (proffered via the Russian Embassy) ‘or made any money from them’; or that he ‘had accepted any money from the Russian Government or its proxies’. Nor was there any evidence ‘that Russian money went into the Brexit campaign’. Ms Cadwalladr also made clear that she had never thought Mr Banks was a ‘Russian agent’ or a ‘Russian actor’.”

Rather than proving the truth of the ‘single meaning’ determined by the judge, Cadwalladr therefore relied on a public interest defence – attempting to prove that what she said was on a matter of public interest. Through a combination of this defence, and insufficient evidence – in the view of the judge – to show that Banks suffered serious harm to his reputation, the claims were dismissed.

Another angle taken by publications sympathetic to Banks is that Cadwalladr defamed the Brexit campaigner but that he was awarded no damages.

Defamation can be a by-product of exposing individual and corporate wrongdoing. The purpose of a libel trial is to decide whether this is justified by any fair defences – truth, fair comment or public interest. As was partly the case in the Banks v Cadwalladr trial, it also comes to a conclusion about whether there was serious harm to the individual’s reputation or not.

The ultimate facts are that Banks’ claims were dismissed.

He has suggested he may appeal the decision and maintains that “this was never about seeking to silence criticism".

"Carole knows that, had she apologised and agreed not to repeat this false accusation at the outset, these proceedings would never have been necessary,” he added.

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Johnson’s Culture War Against Judges Having a ‘Chilling Effect’ on Rule of Law, Warns Parliamentary Report

Published by Anonymous (not verified) on Wed, 08/06/2022 - 9:01am in

Leading MPs and peers express their concerns about the Government’s attacks on the independent judiciary, reports David Hencke

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Political and media attacks on the judiciary are putting the constitution, democracy, human rights and the rule of law at risk, an influential parliamentary report warns today.

It reveals that a survey of 99% of all judges found that 94% were either seriously concerned or concerned about the current Government’s attitude and conduct towards the judiciary.

The All-Party Parliamentary Group (APPG) on Democracy and Constitution's chair, Geraint Davies, also raised concerns about the position of Lord Chancellor, the Cabinet member who is meant to act as a safeguard for the judiciary – a role currently held by the Justice Secretary and Deputy Prime Minister Dominic Raab. Instead, the Labour MP said it "is now more a political stepping stone from which to take pot shots at the judiciary".

According to Davies, the APPG found that "the courts have been subjected to ministerial and media pressure in the years following their protection of Parliament’s right to vote on the EU deal and their reversal of a prolonged suspension of Parliament by the Prime Minister”.

The report found that such political attacks on judges have had "a chilling effect on judicial wellbeing,” said the MP.

He added: “At a time that the rule of law has been broken at Number 10 and the human rights of refugees is centre-stage in the media, the case for a safeguarded and impartial judiciary is of critical importance to protect our fundamental values of democracy, rights and the rule of law from erosion in the future.”

Davies cited as an example the Prime Minister’s recent decision to amend the Ministerial Code – meaning that ministers who breach the Code will no longer be automatically expected to resign.

“Taken together, the Government is removing constitutional safeguards both in Parliament and in the judiciary designed to protect us from any Government that puts its own power and self interests above those it is elected to serve,” he said.

The APPG – consisting of Labour peer Lord John Hendy QC; Conservative MP Jonathan Djanogly; the SNP's John Nicholson; Labour MP Dawn Butler; among other parliamentarians – examined 20 years of attacks on the judiciary by politicians.

This includes former Labour Home Secretary David Blunkett’s attack on judges for supporting “airy-fairy civil liberties” and observations in the Sun newspaper that judges were “bewigged menaces who made the law look an ass”.

It also noted another Home Secretary Theresa May's misrepresentation of a judge’s decision by stating that an immigrant was not deported because he had a pet cat. The reference to the cat had been made jokingly during the hearing.

Attacks have however become more frequent since Boris Johnson became Prime Minister in July 2019. Ever since his Government was defeated over its plan to prorogue Parliament and limit scrutiny of its Brexit plans, his administration has repeatedly attacked the courts for supposed political interference.

The Government commissioned two independent reviews – one into administrative law and the other into human rights – which found no evidence of political interference by judges in politics. Regardless, ministers are pressing ahead with plans to change human rights laws, and the Constitutional Reform Act, while criticising judicial decisions in the media. The Government even misrepresented the findings of one of the reviews so that it was more in line with its thinking.

“The most direct intervention has come from Priti Patel, the Home Secretary, when she got a senior civil servant to write to the President of the Tribunal, Immigration and Asylum Chamber to express ‘surprise’, and demand an explanation, as to the number of grants of bail in immigration proceedings," the APPG's report states. "This cannot sensibly be interpreted as anything other than an attempt to influence the decisions of the independent judiciary.”

The report recommends that the Government should restate the role of the judiciary to act “without fear or favour” and introduce new guidelines for the appointment of the positions of Lord Chancellor, Attorney General and Solicitor General to take into account the need for legal training. 

It will be illuminating to see whether Boris Johnson's Government adopts any of these recommendations or whether it continues its 'culture war' against the independent judiciary.

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Risking Our Democracy

Published by Anonymous (not verified) on Tue, 26/04/2022 - 8:16pm in

Former diplomat Alexandra Hall Hall argues that the time has come for serious discussions about reforming Britain's political structures

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A new Commission on Political Power was launched in the UK last month to review the state of our democracy and make recommendations on how it might be strengthened. Convened by Baroness Frances d’Souza and Frances Crook, the organisation includes a range of politicians from across the political divide, academics, journalists, analysts and commentators, including myself.

There is always a risk when such a body is convened that critics will argue that we are just a bunch of 'sore losers' who don’t like the current Government or its policies. Having allegedly failed to see our preferred politicians or policies gain favour with the electorate, we are now just claiming it is because 'the system is faulty' or because 'voters are deluded', and are looking for ways to change it more to our liking. 

This objection fails on its face, because the Commission includes politicians from both the left and the right, including from the governing Conservative Party. 

But, while I can’t claim to speak for its other members, I certainly acknowledge that I am not a fan of Boris Johnson's administration. I had such grave concerns about the way Brexit was implemented that I resigned from my role at the Foreign Office. 

I never actually publicly challenged either the legitimacy or the outcome of the 2016 EU Referendum, or the UK’s right to leave the EU. What I did challenge was the dishonest and, in my view, undemocratic way in which Brexit was delivered – including the Government’s wilful misrepresentation of the implications, the unfounded claim that it had a mandate for the very hardest form of Brexit, its attempts to close down legitimate scrutiny of its approach, and its abusive slandering of Brexit opponents as 'enemies of the people'.

I regard all of these as examples of how the guardrails of our democracy are being eroded – and why there is a need for reform now, to prevent future governments from being similarly able to abuse their powers. 

Nevertheless, I accept that, given my history, my own impartiality might be called into account. It’s important to check our own biases.

I believe a good way to do this is by comparing the state of our democracy with that of other countries. In particular, I can draw from my own direct experience as a diplomat to review what our own governments have said or done about alleged flaws in other countries’ systems, and then consider if the same criticism might be applied to the UK.

Head of State

In the UK, the Head of State is the Queen, whose role has largely become ceremonial, yet in whose name the government still possesses many prerogative powers.

In many other countries, the Head of State acts as a kind of bulwark against executive overreach or constitutional abuse.  There have been times when the UK has actively encouraged, or praised, a foreign Head of State for intervening in such a way. When I was the British Ambassador to Georgia, acting in the name of the UK government, I sometimes lobbied its Head of State to do so. 

But in our system, the Queen cannot do that – as dramatically proved when she had no option but to approve Boris Johnson’s prorogation of Parliament in September 2019, a move later ruled unlawful by the UK's Supreme Court.

Given that the Queen has no inherent elected legitimacy of her own, there would have been a justifiable outcry if she had sought to prevent the prorogation. Yet, given that the prorogation was in fact deemed to be unlawful, this event also exposed the lack of constitutional utility of the monarch’s current role. 

Critics will say that, since the Supreme Court did intervene to overturn the prorogation, this shows that Britain does still have a strong check against executive overreach, via the judiciary. Yet, as we do not have a written constitution, the courts can only make rulings based on current laws – which the government can seek to rewrite at any time.

Under our current system, Parliament is sovereign. Indeed, taking full advantage of these powers, the Government is currently proposing legislation to restrict the use of judicial review, in what senior Conservative MP David Davis critiqued last year as “an obvious attempt to avoid accountability”. 

This is despite the fact that British governments regularly raise concerns about the strength and independence of the judiciary in other countries.

Judicial independence was, for example, a regular topic of discussion during human rights dialogues I participated in as head of the Foreign Office’s Human Rights Department from 2004 to 2006 with Iran, Russia and China. We also used to criticise threats and intemperate language towards judges overseas, though some members of the Conservatives appear to have no such qualms attacking British judges who make rulings they dislike. 

Houses of Parliament

In some countries, the second chamber of the legislature is another way to counter-balance the executive. But, in those countries, its legitimacy derives from the fact that it is also an elected body – unlike our House of Lords, which is comprised purely of hereditary or nominated peers, plus a few ex officio members of the clergy.

In view of its limited legitimacy, the House of Lords can scrutinise, amend and delay legislation, but it cannot ultimately override the votes of the House of Commons. 

Moreover, the process of nominating peers has been exposed under this Government to be widely open to abuse – with peerages up for sale to the largest donors to the Conservative Party, or other cronies, such as friendly media or business barons. This is a system of political patronage which in other countries we might label 'corruption'. 

Previous British governments have indeed condemned similar such political cronyism or stacking of chambers in other countries. In the country of my first posting, Thailand, we regularly criticised efforts by the authorities to rewrite the constitution after military coups in order to ensure a disproportionate role for unelected military officials in their upper house. More recently, British ministers criticised the regime in Myanmar for rigging its constitution in favour of the military.  

But even our elected chamber, the House of Commons, has limited ability to check our executive, since by definition, under our parliamentary system, the government has an in-built majority in the House.

It is true that the Commons can try to bring down a government through a vote of no confidence – but this is only likely to succeed when members of the prime minister’s own party have turned against their leader. It is therefore not truly in the gift of the opposition, let alone the electorate, but in the hands of the members of the ruling party, who may have their own reasons for wanting to avoid an election. 

A vote of no confidence does not actually automatically trigger a new election, but sometimes only a change of leader – which, again, is something entirely in the hands of the ruling political party. While the Fixed-Term Parliaments Act created its own problems, the absence of fixed terms also gives the incumbent government an advantage in being able to call an election early, if the timing seems opportune. 

This problem of an over-powerful executive is exacerbated by our 'first past the post' electoral system, which has resulted in successive governments since World War Two achieving disproportionately large majorities in the House of Commons, despite never winning a majority of the popular vote.

Neither of our two main political parties has wanted to change this system, as it works to their benefit, even as it crowds out many people whose votes for third parties rarely make a difference.  

But this has not stopped British governments from recommending that some other countries should consider adopting proportional systems as a way to ensure 'fairer' electoral outcomes. This was an issue while I was in Georgia. A case of do as I say, not as I do?

Devolution

Devolving more powers to state or local authorities, as is the case in many federal systems, could provide greater democratic balance – and is a model we have sometimes commended to other countries with significant regional differences or diverse populations. 

When I was in Bogota, for instance, we used to lobby the government to be more inclusive and sensitive to the needs of its indigenous communities and Afro-Colombians, who were under-represented in Government. 

By contrast, the UK system is highly centralised, with only limited powers granted to most local authorities. They are also very reliant on the Treasury for funding, which is often allocated with restrictive mandates attached. 

In the 2019 General Election, only six Conservative MPs and one Labour MP won seats in Scotland. Ironically, both parties would have done meaningfully better under a proportional electoral system. The Conservatives won more seats in Wales, but were still outpaced by Labour. At present, the UK government could really be more accurately described as a largely English one. 

Various devolution initiatives have at least resulted in the creation of the Scottish Parliament, the National Assembly of Wales, and the Northern Ireland Assembly. Yet Brexit was driven through against the wishes of the majority of voters in Scotland and Northern Ireland. The UK Government retains the power to dissolve the Northern Ireland Assembly and take over administration of the province – a power it used most recently in 2017. The UK Government also remains opposed to letting the Scottish hold another independence referendum in the near future, despite the Scottish National Party holding a clear majority of seats in its Parliament.

Despite this, Britain has supported aspirations for self-determination in other parts of the world – even in India, where successive UK governments have trodden extremely carefully given Britain's colonial legacy. Taking into account the deep sensitivities over Kashmir, UK ministers have called on India to take into account the wishes of the Kashmiri people in seeking a lasting political resolution to the dispute with Pakistan. In a debate as recently as September 2021, MPs from both sides of the House expressed concern over the decision by Narendra Modi's Government to revoke the special status of Kashmir in 2019 and called for India to recognise Kashmir’s right to self-determination.  

Executive Power

There are numerous other examples of where the UK’s democracy is vulnerable by comparison with that of other developed nations. 

We have no method of scrutiny, for instance, to determine the aptitude and fitness of nominated Cabinet ministers for their office – unlike in the US where Cabinet nominees have to undergo a rigorous confirmation process in the Senate. Even in the EU, lambasted by some Brexit supporters for its alleged democratic deficit, there is now a process for EU commissioners to be approved by the European Parliament. 

Cabinet membership in the UK seems to be as much about personal loyalty to the Prime Minister – or perhaps a method of keeping potentially difficult backbenchers onside – as it is about the knowledge and experience of the minister for the job. If there is no suitable MP available for a particular position, the government can simply confer a peerage on an associate. 

Another weakness is the lack of any mechanism for upholding the Ministerial Code. As has been graphically revealed by the 'Partygate' scandal, the code is non-binding; the advisor on ministerial standards is nominated by the prime minister; and only the prime minister gets to decide whether to implement the advisor’s recommendations, or to censure ministers found to be in breach of the code. 

This brings us to the problem of the enormous power granted to the prime minister and his government, acting in the name of the crown, to make appointments to various public watchdogs and quangos – including those overseeing important public services and the media. It is all too easy to imagine the temptation to appoint sympathisers to these important positions, who might then in turn be inclined to be lenient towards the government which appointed them. 

While we have a strong tradition of freedom of expression, the ownership of parts of the media by government cronies can mute its criticisms of government policy – as can the government’s ability to grant privileged access to favoured journalists and media outlets. Boris Johnson’s Government famously boycotted Radio 4’s flagship Today programme, as well as Channel 4 News, on the alleged grounds of bias. It has also introduced legislation to circumscribe some rights of public protest. 

Reform

No system is perfect and every democracy has its flaws. Each system is also unique to its country’s own traditions, culture and history. There is no perfect blueprint which can be applied. What works in one country may not work in another. The UK’s system has evolved over time, and despite its many quirks and anomalies, has generally seemed to work well enough, and commanded the consent of voters. 

We have avoided the messy processes of coalition-building and fragile governments which have bedevilled governance in some of our European neighbours. We have avoided the never-ending round of elections which consume vast amounts of time and money in America, as well as its worst excesses of gerrymandering and influence buying. We have been blessed with a Head of State for the past 70 years who has been meticulous in her observance of the constitutional niceties. 

I am not contending that we have become a full-blown autocracy or that there are not some good aspects of our existing system. However, we cannot afford to be complacent.

Given the limitations on our Head of State and second chamber, the skewed nature of our electoral system, the in-built majority which the government enjoys in Parliament and its ability to rewrite laws at will, our system relies heavily upon the government adhering to certain unwritten rules and conventions, and effectively restraining itself.

The trends in this regard in recent years are not encouraging. Whether it was Tony Blair’s overreach and misuse of intelligence in the Iraq War, or Johnson’s misuse of information and overreach in delivering Brexit, it has become evident that relying on self-restraint is no longer enough. 

One of the most infuriating arguments used by Chinese diplomats during our human rights dialogues was to dismiss the UK's concerns by saying that, just like Britain, they believed in the rule of law and were merely 'applying the law' to whatever human rights situation we mentioned. But the law is whatever the Chinese Government chooses it to be, interpreted by judges in its pocket. It was a classic gaslighting tactic.

I feel the same sense of gaslighting, when our current Government justifies its actions by saying that it is representing 'the will of the people', and demonises critics as out of touch, anti-democratic, elites. This is the dangerous rhetoric of demagogues. 

Local elections can provide a bellwether indication of public opinion mid-term, which may encourage governments to course correct, if necessary. But under our current system, there is no sure-fire way to rein in an overreaching executive or to compel a change of course until the next election, by when it may have further corrupted the system to its advantage. 

Perhaps we can continue to count on there always being enough decent politicians in Parliament to uphold standards. But looking at the trajectory of our politics in recent years, I have to ask: why take the chance? It is time to fortify our democracy and reduce the risk of further abuse before it is too late. 

Alexandra Hall Hall is a former British diplomat with more than 30 years experience, with postings in Bangkok, Washington, Delhi, Bogota and Tbilisi. She resigned from the Foreign Office in December 2019 because she felt unable to represent the Government’s position on Brexit with integrity

Hardeep Matharu, Editor of Byline Times, is an independent research consultant for the Commission on Political Power

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It’s Time for the Government’s Contempt for Lawyers to End

Published by Anonymous (not verified) on Mon, 11/04/2022 - 9:32pm in

Barrister Gareth Roberts explains the importance of the industrial action approved by the Criminal Bar Association

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Outside Court 4 of the large municipal court building where I spend most of my days, a barrister sits waiting for the doors of the court to open. She looks weary. “A stinky return,” she tells me, which is barrister code for a case in which another lawyer was originally instructed but, because their case has overrun, has been forced to be taken over at the last moment. 

It’s nothing new; it’s part of the job – but it means that for this particular barrister, her whole weekend will have been spent reading and preparing a case which, as it happens, involves the sexual abuse of children.

I also know that she will have done it diligently and thoroughly and that by the time she gets up to her feet to open the case before a jury, she will be in a position to fulfil her role as a prosecutor in a case that for all those involved – from the defendant to the victims – will be of profound and life-changing importance. 

I also know that she will not be paid a single extra penny for the hours in which she will have spent toiling with the case over the weekend. 

Nor, as an independent self-employed criminal barrister (which more than 90% of criminal barristers are), will she be entitled to any holiday pay or sick pay – while any pension she may be accumulating will be coming from her own salary. Occasionally, she may be able to claim travel expenses, but only if she is travelling to a court that is two hours away from her chambers, and as for a regular pay review, to ensure that the general cost of living together with various other professional costs are taken into account, that is just pure fantasy. The bar has had no proper structured pay rise or objective review in a generation. 

The public perception of barristers is that we are all comfortably middle class and well paid. The hackneyed phrase, “fat cat lawyers”, trotted out by the lazy and politically motivated has stuck in the public psyche – with people assuming that we are all pin-striped and pompous.

For the criminal bar, that cliché couldn’t be further from the truth. 

It takes at least five years to qualify as a barrister. Some newly-qualified juniors will earn around about £20,000 per year, whilst most juniors can expect to earn around £60,000. It’s not bad pay, but when it is put into the context of the work that we do and the effort it takes to obtain the qualification, it clearly isn’t enough. 

But it is not just pay that is undermining the morale of the bar. 

Since the COVID-19 pandemic, the courts have been trying to deal with the backlog of cases that couldn’t be heard during lockdown (a number that was already huge due to the closure of courtrooms and the reduction in the number of staff and judges required for trials). Understandably, priority is being given to those cases involving child witnesses or defendants who are on remand. 

Last year, I wasn’t alone in prosecuting and defending well over a dozen cases involving the sexual abuse of children. Others have spent weeks, ploughing through the phone records and detailed forensic evidence that surrounds complex fraud and large drug conspiracies. 

It takes its toll. 

The most recent Criminal Bar Association research showed that 59% of barristers have suffered from some kind of exhaustion due to the pressures of the job, ranging from an inability to sleep to depression and anxiety.

I, like most other lawyers, know of many colleagues who have suffered breakdowns, developed addictions or watched their home life suffer as a result of the pressure to cope with the backlog of cases and lack of support. 

Many young lawyers coming into the profession eschew the challenges of the Criminal Bar and opt instead for better-paid work in the civil division, while many established practitioners are leaving – saying that they’ve had enough.

Crime and Contempt

Successive governments have treated the bar with barely disguised contempt. Politicians know that, unlike more sympathetic professions such as nursing or teaching, barristers command little backing among the electorate.

That is why Home Secretary Priti Patel felt able to brand us “do-gooders” and “lefty-lawyers” as she accused lawyers of acting against the interest of the country in defending asylum seekers from deportation.

It is also why Justice Secretary Dominic Raab has dismissed threats of industrial action made by the Criminal Bar Association – saying that it would be “unwarranted, irresponsible and hold back the recovery being made after COVID”.

This lack of public sympathy and the unfair stereotypes of barristers has meant that, historically, the Criminal Bar hasn’t seen a great deal of success when it has advocated in favour of its own cause. The consequence has been two decades of cuts to legal aid and the gradual erosion of working conditions. 

Perhaps now, however, barristers are in a more powerful position – the Criminal Bar Association has made a set of comprehensive and coherent demands, urging the Government to increase pay, put an end to the practice whereby written work is done for free, set up an effective pay review body, and introduce adequate payment for cases that involve the cross-examination of children and vulnerable witnesses. 

A ballot of members saw 94.4% vote in favour of industrial action in the event of the Government refusing these demands. 

The industrial action will take the form of barristers refusing to accept ‘returns’ – such as the case I described earlier – that will see cases adjourned as there will be no barrister available to prosecute or defend. In many cases, it will lead to a delay in which young or vulnerable witnesses will have to wait for many months, even years, until they can have their evidence heard. Similarly, it may lead to innocent defendants languishing on remand as they await the outcome of their trials. 

No barrister will want this. Overwhelmingly, we have a keen sense of doing what is right by the justice system. At the same time, however, barristers also have a duty to protect their profession and to make sure that it continues to provide a first-class service for those who have the misfortune of becoming either a person accused of a crime or a person who is the victim of a crime.

Society must be confident that those who keep the wheels of justice turning are professionals and experts in their field, and for that to happen, it’s time for a Government to make concessions.

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The NHS Whistleblowing Crisis

Published by Anonymous (not verified) on Tue, 08/02/2022 - 9:03pm in

The NHS Whistleblowing Crisis

Tommy Greene and David Hencke report on a number of worrying NHS dismissal cases

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Whistleblower doctors are being stifled by health trusts from revealing patient safety concerns, either by being dismissed or silenced by chief executives and medical directors.

The employment tribunal system is being overloaded with cases involving NHS whistleblowers and unfair dismissal claims, which are taking years to progress through the system. A number of cases are taking two or three years before they can be heard.

Trusts are able to use taxpayers’ money to employ barristers to fight the cases over years and doctors are finding that trusts are trawling through NHS records to find evidence that can be used against former employees.

Most doctors are appearing as a ‘litigant in person’ because they do not have the money to employ a lawyer. Many face selling their home or taking on debt in order to clear their name.

The most prominent recent case was that of Dr Chris Day, then a junior doctor in an intensive care unit in a hospital in Woolwich, who reported staff shortages as long ago as 2013 and whose case was covered by the Guardian in 2018.

After a series of tribunal and high court hearings, his case will not be heard until June. Lewisham and Greenwich NHS Trust has spent nearly £1 million pursuing him.

Cases drag on even after doctors have won their tribunals.

In 2016, consultant urologist Peter Duffy left Morecambe Bay NHS Foundation Trust following alleged retaliation after he flagged multiple failings in the trust’s urology department. A subsequent investigation of the unit revealed that 520 patients there had suffered “actual or potential harm”. He won a case for constructive dismissal in 2018, with a judge ordering all relevant documents held by the trust to be released.


‘Perversion of Justice’The Abandoned NHS Whistleblower
Stephen Colegrave

Then, two emails appeared in 2020 suggesting that Mr Duffy was partially responsible for the death of a 76-year-old patient in 2014. Mr Duffy has said that these emails must have been falsified because neither he nor other people in the trust can recall ever seeing them.

However, the trust and NHS England are insisting that they are genuine – after employing a private company to conduct a fresh review two years after losing the case. The company said that the emails were discovered after the trust upgraded its computer system, enabling it to search for more emails.

Concern among doctors is rising, and and an informal organisation – Doctors and Patients for Justice – has been established to provide mutual help and support in forthcoming tribunal cases.

One case currently awaiting a result involves Dr Usha Prasad, the sole woman cardiologist at Epsom and St Helier University Health Trust. She was dismissed after raising whistleblowing and discrimination issues. The trust’s medical director commissioned an investigation alleging that she had made errors in 41 previous operations. The General Medical Council threw out the dossier and decided to revalidate Dr Prasad to practice.

An internal inquiry at the trust later ruled that Dr Prasad was “unfit” to work as a doctor and upheld her dismissal.

It has been now been revealed at an employment tribunal that she was working on an internal investigation into the “avoidable death” of an elderly cardiology patient, and was pressurised to alter the report that the death was avoidable and a recommendation that this should have been reported to the coroner and the Care Quality Commission watchdog.

Now, three years after the event, the trust’s former head of cardiology, Dr Richard Bogle, admitted that it should have informed the coroner and the Care Quality Commission about the case. A ruling on the hearing is pending. Despite this, Dr Prasad recently lost her tribunal case.

None of the NHS trusts responded to Byline Times’ request for comment.

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Enabling Acts: Citizenship of Quarter of Britons at Risk as Conservatives Construct an Authoritarian Legal Infrastructure

Published by Anonymous (not verified) on Mon, 24/01/2022 - 11:54pm in

Enabling ActsCitizenship of Quarter of Britons at Risk as Conservatives Construct an Authoritarian Legal Infrastructure

Nafeez Ahmed analyses eight bills which, taken as a whole, reveal an unprecedented and undemocratic ethno-nationalist power grab

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The focus on Prime Minister Boris Johnson’s lockdown party antics has allowed the Conservative Party to accelerate its pursuit of unprecedented legal powers across a system of eight new bills – one of which has already been passed into law. The new regime could put up to 15 million Britons – a quarter of the population – at risk.

Home Office plans under the Nationality and Borders Bill would put the citizenship of up to a quarter of the UK population at risk – including Jewish and Irish citizens – according to a British data-led diaspora research consultancy that works for the United Nations among other agencies.

The revelations come as the Conservative Party seeks to push through a series of seven key bills and associated reforms. Although many of the bills have been widely discussed in the press, they are being viewed largely as separate pieces of legislation. 

Even in isolation, the assault on democracy they represent is obvious. But taking a holistic perspective – viewing them as an interlocking set of legal instruments – they represent not merely an attack on the most fundamental checks and balances of British democracy, but an overturning of the foundations of democracy itself. 

In particular, they promise to provide the British state extraordinary powers to control the lives of all its citizens – especially along ethnic and racial lines – while centralising the dominion of a state-corporate executive operating unaccountably beyond the rule of law. 

In total, the eight pieces of legislation will comprise a new autocratic governing regime in Britain that will be extremely difficult to dislodge or reform through democratic processes, and which will undermine the integrity of the popular vote.

  1. Nationality and Borders Bill: Up to 15 Million at Risk

As has been widely recognised in the British press, the Nationality and Borders Bill would provide the Home Secretary unprecedented powers to deprive British citizens of their citizenship without telling them. 

The bill extends the Government’s already existing power to strip dual nationals and naturalised British citizens if the Government believes that doing so is “conducive to the public good”. As long as the Government can also claim to have “reasonable grounds to believe” that the individual in question is eligible for foreign citizenship (so that, at least ‘in theory’ the Government could claim they would not be made stateless), their status as British citizens can be unilaterally eliminated.

The problem with this law is that it removes democratic checks and balances on how this extraordinary power is exercised. 

Late last year, Ben van der Merwe showed in the New Statesman that as many as two in five people in England from an ethnic minority background – some six million people – could in principle have their British citizenship removed by the state under the proposed law, without being notified. 

But the New Statesman’s figures are likely an underestimate of the real risk. According to an analysis by Shabaka – a data-led UK-based diaspora research consultancy that has worked with the United Nations, Africa Union, European Union, British Red Cross, among many other agencies – the real number of people whose British citizenship could be jeopardised under Home Office plans is as high as 15 million: nearly a quarter of the British population.

In an article published in late December last year, Shabaka noted that the Shamima Begum case shows how the Government can render British citizens stateless, in breach of international law, simply on the basis that they hold a theoretical right to another nationality. 

This has dangerous implications for a wide number of minorities, disproportionately diaspora and communities of colour, but also including Irish and Jewish people in Britain.


‘A Deeply Dangerous Power Grab by the Home Secretary’Conservative Peer Calls for Plans to Strip Citizenship Without Warning to be Scrapped
Hardeep Matharu

“This provision, therefore, threatens the rights of many more British citizens: in addition to dual nationals and naturalised citizens, it could also be applied to most diaspora communities in the UK; almost all Muslims, every single Jewish person in the UK (as Israel accords citizenship rights to all Jewish diaspora), and all those who have a parent or a grandparent who is a foreign citizen,” concluded Shakaba. 

“The Irish government estimates that over 6m British people are eligible for Irish citizenship 

alone through having an Irish parent or grandparent born on the island of Ireland, nearly 10% of the UK population.”

In total, Shabaka estimates that up to 12-15 million British citizens – which is between 18 and 24% of the UK population – could “theoretically at least, be stripped of their citizenship in secret, should the Home Secretary so decide. This effectively makes them second class citizens, whose place in the country is increasingly contingent on the favour of the Home Office”.

The Government’s defence of this extraordinary power is that it will only be exercised in exceptional circumstances as “a last resort against the most dangerous people to protect our national security and public safety”. But the language of the legislation itself doesn’t stipulate how such a danger is to be determined, leaving it entirely at the Government’s discretion as to who might undermine “the public good”.

As Colin Yeo, a top immigration barrister at leading human rights firm Garden Court Chambers has said: “Exercise of citizenship stripping powers was virtually unknown in the UK before 2010. It was something associated with the Soviet and Nazi regimes… But it has been used against hundreds on national security grounds since then and has started to be used against very serious criminals now as well.” If implemented, he added, the Nationality and Borders Bill will create “a massive pool of second class citizens who are mainly ethnic minority and whose status is contingent on good behaviour.”

The legislation would thus enshrine a racialised system of two-tier citizenship in which ethnic minorities find themselves at perpetual risk of deportation if deemed a thorn in the side of what the Government defines as ‘the public good’.

This legislation, then, is a potential threat to all ethnic minorities in Britain – and for the first time since the Second World War it would empower a Western democracy to target minority communities from Black, Asian, Jewish and many other ethnic minority backgrounds with impunity: the foundation for an ethno-nationalist state.

  1. Police, Crime Sentencing and Courts Bill: Criminalising Dissent

The implications of the Nationality and Borders Bill, however, cannot be fully recognised without understanding it in context with a wide range of other new legal powers the Government is seeking.

The Police, Crime Sentencing and Courts Bill, which is supposed to help the police and courts take “more effective action” against crime leading to a “fair justice system”, in practice will do the opposite. Among the bill’s most egregious innovations is the introduction of a new public nuisance offence with a maximum sentence of 10 years, which would make it a crime to “intentionally or recklessly” cause “serious annoyance, serious inconvenience or serious loss of amenity” to the public.

Under such new powers, the Government and police would have wide largess to arrest anybody for doing anything that might conceivably be defined by them as falling within this category. Apart from undermining freedom of speech, the bill would allow the Government to criminalise a wide range of unspecified public behaviour. In effect, the Home Secretary would have unprecedented authority to unilaterally shut down any protest it wants.

As Guardian columnist George Monbiot observed last year, the Government also intends to criminalise any protest – including pickets or any kind of action – that might be deemed as interfering with any existing infrastructure, or the construction of new infrastructure. The bill refers to places “such as” roads, railways, ports, airports, oil refineries and printing presses, but is so vague it could therefore be applied to corporate or government buildings or general public spaces. 

While the Nationality Bill thus formally defines citizenship as a two-tier system in which most ethnic minorities in effect hold conditional citizenship, unlike the majority white population, the Police Bill provides the Government with the ability to quash public displays of dissent against Government policy at the whim of the Home Secretary.

  1. Judicial Review and Courts Bill: Executive Diktat

Perhaps the most insidious development comes from the Judicial Review and Courts Bill, which if passed would prevent citizens from using the rule of law to challenge how the Government implements and interprets the law in the first place. This means that the Government will be able to execute its own interpretation of the new raft of deliberately vague legal categories under these bills while dramatically reducing the scope for legal challenge.

A letter from environmental law advocacy group Fish Legal to Justice Secretary Dominic Raab sent in December highlights how the bill could be abused. Currently, when anti-pollution groups win cases against the Government or public bodies for unlawful decisions, judges usually quash those decisions resulting in them being overturned. However, the new bill will in effect take away the judge’s discretion to do this by forcing them to consider alternative legal remedies before considering a “full” quashing order.

The new powers under the bill mean that while a judge could decide that the Government’s actions were unlawful, this could be done without invalidating any prior actions – which would mean that even if a legal challenge against the Government were successful, there be no meaningful benefit. 

The bill also has a specific implication connecting it with the Nationality and Borders Bill. In normal practice, claimants in immigration and asylum cases who are refused permission to appeal by first-tier and upper tribunals, still have the right to bring a judicial review case in the high court. However, the bill proposes to eliminate this right. 

Many legal experts have warned that the bill would provide unprecedented power to the state executive, over and above judicial accountability and parliament. A legal analysis published by The Constitution Society and the London School of Economics’ LSE Law Review warns that under the bill, “an erroneous decision could be corrected by proposing to Parliament a piece of primary legislation which would… render a decision clearly labelled by the court as unlawful, lawful.” 

The effect of the bill would in real terms move Britain into the kind of ‘authoritarian democracy’ favoured by fascists: 

“This kind of exercise of executive power could damage the state of the rule of law in the UK – calling on Parliament to legislate to make something that was previously unlawful, lawful, solely because it fulfils the executive’s wishes, brings a constitutional democracy dangerously close to an elective dictatorship’, to use Lord Hailsham’s well-known phrase… The scenario where Parliament passes an Act in order to render a previously unlawful decision of the executive lawful would radically change the optics of the balance of power. It would unambiguously transfer legislative sovereignty to the executive and would, contrary to the constitutional principle of parliamentary supremacy, effectively place Parliament in a subservient position to the executive.”

The LSE analysis points out that the bill doesn’t mean that the state will “necessarily exercise” its newfound powers “in a dictatorial fashion”. But the biggest problem is that the bill implies there will no longer be any legal guarantee against the dictatorial abuse of executive power.

The bill, then, will have further dangerous implications for the already precarious legal rights of British individuals deprived of their citizenship, and criminalised for acts of public dissent, to appeal against the Government’s decisions – dramatically eroding the scope for legal and democratic checks and balances.

“The proposed bill purports to be an innocent technical modification of the judicial review system,” concludes the Constitution Society analysis. “However, the prospect of its enactment is alarming… Not only will the legislation affect individual challenges, it will limit the system of checks and balances, and through this alter the British constitutional regime.”


Trust in Government Worryingly Low As Lords Vote for ‘Assault on Democracy’ Elections Bill
Sian Norris

  1. The Elections Bill: Eroding the Vote

The Elections Bill provides further insight into the Government’s direction of travel. Among its most significant reforms is the introduction of compulsory photo ID for voters at polling booths. 

Of course, according to the Government’s own figures, approximately 2.1 million people in Britain – mostly from black and ethnic minority backgrounds as well as working-class and older people – do not have a recognisable photo ID and therefore could end up being unable to cast their ballot. 

Last summer, the Electoral Reform Society described the bill as “an unprecedented risk to democratic access and equality” that “could leave millions of voters unable to cast their ballot.”

But the prospect of racialised voter suppression is just one element of the bill. 

Another is its implications for the Electoral Commission, the independent public body that regulates party and election finance and sets standards for how elections should be run. Under the new bill, the Government can define the Electoral Commission’s priorities through a strategy and policy statement that would be approved by MPs. The bill thus fundamentally imperils the independence of the Electoral Commission.

The bill also contains clauses which for the first time, according to Rae Burdon of the Reform Political Advertising Coalition, in effect “permits political lies” by allowing inaccuracies in electoral advertising.

The bill introduces a new “digital imprints regime” that requires the identification of a candidate, the candidate’s “promoter”, but not the candidate’s party: “The absence of this condition allows candidates, whose political affiliation is often unknown to the voter, to run misleading claims about opposition policies under a different guise.” 

This has already happened – for instance, with Shaun Bailey’s mayoral campaign distributing leaflets purporting to be from ‘City Hall’, but not mentioning his Conservative Party affiliation. 

  1. Higher Education Bill: ‘Free Speech’ Thought Police

The Government is also seeking the power to control research and teaching at universities in the name of ‘free speech’. 

The Higher Education (Free Speech) Bill seeks to appoint a “free speech and academic freedom champion” to investigate alleged infringements of free speech at universities. 

Universities found to be in breach can face fines, and individuals will be able to make claims on alleged losses suffered due to a breach. 

Despite the bill’s apparent concerns with protecting free speech, the appointment of a state bureaucrat at the Government’s Office for Students whose job it is to determine the parameters of legitimate public debate in higher education institutions contradicts the very idea of free speech in the first place. It creates a new avenue for direct state interference in higher education bodies, one which could easily be abused along either left or right wing ideological lines depending on who is in power.

This is especially obvious given the Government’s professed priorities – in 2020, then education secretary Gavin Williamson had rejected calls for more teaching about Britain’s colonial history including the slave trade. He was explicitly disinterested in a diversity of views and robust debate, but instead urged the following one-sided approach: “… we should be incredibly proud of our history because time and time and time again, this country has made a difference and changed things for the better, right around the world. We should, as a nation, be proud of that history and teach our children about it.”

That year, the Government also sought to defund historical research exploring links to empire and slavery at National Trust properties. The action prompted the heads of some of Britain’s most prestigious heritage institutions including the Royal Historical Society, the Historical Association and the Economic History Society to condemn what they described as Government interference stifling “historical research and freedom of speech.”

Previous Byline Times investigations have revealed that pressure to create the bill came partly from a network of academics operating under the influence of American billionaire and Trump donor Peter Thiel. Several alt-right figures including white nationalist extremist Charles Murray and race science sympathiser Jordan Peterson have been hosted at Cambridge University by members of this network. This is despite the fact that the bulk of Murray’s discredited claims about race and IQ come from research funded by a Nazi eugenics foundation with direct ties to individuals involved in genocidal actions against German Jews. 

Although the main academic – James Orr – involved in hosting Murray and Peterson is a Government advisor, the Government declined to comment when asked about how the free speech mandate was being exploited to promote racist pseudoscience.


Peter Thiel’s Free Speech for Race Science Crusade at Cambridge University Revealed
Nafeez Ahmed

  1. Online Safety Bill:  State-backed Censorship 

The Government is also attempting to push through new legislation to regulate online content and social media. 

The Online Safety Bill will introduce “state-backed censorship and monitoring on a scale never seen before in a liberal democracy” according to Big Brother Watch’s legal and policy officer Mark Johnson.

The bill empowers the Ofcom regulator and tech platforms with a “duty of care” to censor any material online that the regulator deems “harmful”, rather than simply illegal – broadly defined as any content which risks having “a significant adverse physical or psychological impact” on someone with “ordinary sensibilities”. Platforms are also expected to protect posts “of democratic importance”. 

As the definition of these terms is inherently ambiguous, the final arbiter will be the state regulator. And as platforms could face large fines for failure to comply, they will be incentivised to remove potentially “harmful” content before cases reach the regulator. 

The legislation also calls on platforms to apply this “duty of care” to content sent via private messages, without offering clear guidance on how this can be done without compromising end-to-end encryption. However, the prospect endangers individual privacy and in particular secure channels of communication for journalism. 

This could have a chilling effect on free speech largely at the expense of minorities. As LGBTQ+ campaigners have pointed out, perceptions of “harm” against “ordinary sensibilities” could be exploited by hate groups to pressurise platforms to remove LGBTQ+ content – a practice that could be extended to silence a wide range of minority perspectives. 

Although ostensibly aimed at protecting children and young people, and stopping racial hatred online, the draft Online Safety Bill does not even mention the words ‘race’, ‘racism’ or ‘hate crime’ at all.

According to the Carnegie UK Trust, the bill fails to provide any meaningful elaboration on how it will practically address “huge volumes of racism, misogyny, antisemitism, etc”, which largely fall under the category of unlawful content. As racism, homophobia, transphobia and incitements to violence are already illegal, the real challenge is not inventing novel categories of “harm” but simply more robust enforcement against unlawful content in online spaces.

“There are legitimate fears that the Online Harms Bill could end up protecting racists, sexists, homophobes and transphobes while removing the voice of the groups targeted by such abuse,” according to Solent University sociologist Dr Garfield Benjamin. “If the government bans anyone from criticising it, or from discussing important issues and systemic injustices like racism and colonial history, then existing problems will only get worse.”

  1. Health and Social Care Bill: Genetic Data Grab

While the Online Safety Bill is consolidating state control over digital content, the Government’s Health and Social Care Bill threatens to place the national health service (NHS) increasingly in the hands of private interests while steadily dismantling it. But perhaps the biggest implication of the bill is its implications for Government control over the genetic records of the British population.

Like the Government’s other legislative offenses, the bill grants extraordinary powers to the executive – in particular allowing the health secretary to do everything from reorganising a local A&E department to vetoing senior NHS appointees. 

Replacing Care Commissioning Groups with integrated care boards (ICBs) that will commission most health services and decide how to distribute a limited budget, the bill allows giant private multinational companies and health insurance firms to sit on the ICBs. It also allows them to delegate ICB functions to these companies and to award and extend contracts without advertising. This opens the door for health services to be privatised at every level, while also allowing private firms to have a say in which medical conditions are funded.

It also reduces the NHS’ duty of care to local populations, for instance by removing the requirement for emergency services to be provided for everyone in a given commissioning area, and eliminating the statutory duty to arrange provision of secondary services, such as hospital services.

The Health and Social Care Bill is not just a power grab, but a private data grab under the guise of ‘data sharing’ – allowing the Government to have access to “anonymised” data from all registered adult social care providers, including private hospitals. This includes personal information, which can also be shared by the Department for Health and Social Care (DHSC) across Government with other departments. 

“The Bill as drafted would in effect hand NHS England full powers to determine what data it takes, who that data can be sold to and what rules apply, without any external oversight,” concluded an analysis by non-profit health privacy campaign group, medConfidential. 

But there is a deeper and more sinister dimension to this data grab: its role in the Government’s vision of embedding “genomic medicine” into “routine care” across the NHS by 2025, as previously revealed by Byline Times. The Government is aiming to harness data across the national health system, including “genomic data generated by gene sequencing.” 

This year, DHSC’s Genomics England has just declared its new goal of sequencing half a million whole human genomes over the next five years to create a “lasting legacy for patients by introducing genomic sequencing into the wider healthcare system”. 

Although there is scant evidence that the UK Government’s ambitions are remotely viable (more than 95% of diseases or disease risks – including Alzheimer’s, autism, asthma, juvenile diabetes, psoriasis, and so on – cannot be predicted accurately from the DNA sequence), the Government’s unwavering belief in the genomics preventive medicine agenda appears to be rooted in longstanding sympathies with eugenics. 


____________________________

Nafeez Ahmed explores the troubling implications and assumptions of the Government’s AI-driven gene programme

In February 2019, as Byline Times reported, Boris Johnson’s former chief advisor Dominic Cummings blogged about his hopes that a new NHS genomics prediction programme would ultimately allow the UK to not just prevent diseases, but to do so before birth apparently by selective breeding. Cummings also confirmed that he had arranged for eugenicist Steven Hsu to address UK policymakers in London. Hsu had previously given presentations promoting eugenic breeding schemes using embryo selection to improve the overall IQ of the population.

Among the ideas Hsu presented to Cummings’ colleagues in Government was that “the UK could become the world leader in genomic research by combining population-level genotyping with NHS health records”. This approach holds the promise of “revolutionising healthcare in ways that give Britain some natural advantages over Europe and America”, Cummings enthused at the time.

Although Cummings is no longer in Government, his support for eugenics appears to have been highly influential on several key figures in Government, particularly Michael Gove, Dominic Raab and Boris Johnson himself. 

With these seven bills, then, the Government is on track to fundamentally reconfigure British politics along deeply authoritarian lines – centralising state power over media, education, health, the judiciary, citizenship itself and even our genetic records in an unprecedented fashion. The icing on the cake comes in the form of an eighth bill which passed into law last year with little fanfare.

  1. Covert Human Intelligence Sources Act: Empowering Political Violence against Opposition

The Covert Human Intelligence Sources Act came into effect in March 2021. The extraordinary law would read well in any dictatorship’s playbook, and perhaps more than any other legal innovation discussed here exposes the underlying anti-democratic import of this Government’s agenda

In short, the Act allows Government departments, police forces, intelligence agencies and the armed forces to authorise anyone (including children and other vulnerable people) to commit crimes “in the course of, or otherwise in connection with” any covert operations. That includes the ability to commit murder, rape, torture, theft, and any other crime

Anyone targeted in such covert operations is excluded from standard criminal injuries compensation. 

While domestic surveillance is targeted at many nefarious groups such as neo-Nazis and Islamist terrorists, there is a long history of peaceful civil society groups also being targeted – including trade unions, civil rights organisations, anti-war groups, environment activists, and student organisations such as the National Union of Students. 

But the new law now adds a sinister dimension to the scope of Government powers in such covert operations. 

In theory, this Act grants the Government the ability to secretly commit crimes against its own citizens – essentially to do anything it wants to anyone – with total impunity, all in the name of ‘national security’. 

Summary: The Architecture of Crypto-Fascism

Whether or not senior Government officials involved in the development of these bills identify as fascist or oppose fascism is irrelevant.  Their cumulative effect is the unprecedented centralisation of state executive and corporate power over and above the rule of law on the basis of an ideology grounded in nationalist populism, which is rapidly radicalising in the direction of a racialised two-tier system of citizenship in which ethnic minorities are at risk. 

In effect, they function together to create a new legislative architecture that could be exploited to enable a ‘crypto-fascist’ regime. (Crypto-fascism is the concealed support or admiration for fascism, which is often an early warning of more widespread fascism.)

Rather than seeking some specific end-goal of overturning democracy entirely, this new legislative architecture would culminate in a form of elective dictatorship or authoritarian democracy that would not only allow a racialised state-corporate executive to operate without accountability to voters or the rule of law, but make theoretically possible the execution of political violence against minorities and dissidents on an unprecedented scale.

Not only will minority citizenship be conditional on behaviour deemed by the state to be ‘good’; the state and the private interests with which it is entwined will have newfound powers to limit and control politics, education, media, culture, and health – while being capable of deploying covert political violence to silence dissent.

If these bills come to pass – and one of them already has – they will fundamentally undermine the most crucial foundations of a free society, even if their full implications may not become visible immediately, or even under this Government.

However, the point of democracy is that checks and balances work to protect the rights of all. The Conservative Party is trying to create an ethno-nationalist system of governance in which the rights of minorities, opposition and dissidents are systematically diminished. This is the real danger of Boris Johnson’s rule – but it is a dark legacy that will outlast him, and that the current political crisis serves, conveniently, to distract from. 

This article was amended on 25 January 2022 to correct the number of genomes Genomics England aims to sequence.

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The post Enabling Acts: Citizenship of Quarter of Britons at Risk as Conservatives Construct an Authoritarian Legal Infrastructure appeared first on Byline Times.

Dominic Raab’s ‘Operation Red Meat’ Justice Plans Will Backfire

Published by Anonymous (not verified) on Wed, 19/01/2022 - 10:37pm in

Dominic Raab’s ‘Operation Red Meat’ Justice Plans Will Backfire

Increasing the powers of magistrates will only put more pressure on the already strained crown court, says Gareth Roberts

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As part of its ‘Operation Red Meat’ plan to deflect attention away from the Prime Minister’s problems, the Government has this week announced plans to increase the sentencing powers of magistrates courts from six months to one year. 

This increase, brought in by the Justice Secretary Dominic Raab, will release the pressure on the crown courts and reduce the backlog of trials, which currently stands at 60,000.

At present, magistrates courts’ sentencing powers are limited to six months which means that, if they conclude that an offence is so serious that a term of imprisonment greater than six months may be warranted, then they have to send the case on to the crown court to be dealt with by a crown court judge and potentially a jury.

The Government hopes that by doubling this cut -ff from six to 12 months, magistrates courts will keep more cases for themselves, thus reducing the burden on the higher courts. 

Unfortunately, this policy displays a lack of understanding of the criminal justice system. 

At the beginning of the process, a criminal case will be brought before a magistrates court for a hearing to determine which court will ultimately dispose of it. ‘Summary only’ cases (such as minor violence or public order matters) will stay in the magistrates court; ‘indictable only’ cases (usually sexual offences, more serious violence, drug supply and offences of dishonesty involving violence or high value goods) will be sent immediately to the crown court; whereas ‘either-way’ offences (offences grave enough for the crown court to consider but not so grave that this would be automatic, such as assault occasioning actual bodily harm), can find their way to either the crown court or remain in the magistrates. 


The Colston Four It is the Attorney General Who Seeksto Set a ‘Dangerous Precedent’
Gareth Roberts

The Government’s announcement intends for more either-way offences to stay in the magistrates court, as it is hoped that with their increased powers of sentence, magistrates will not deem it necessary to send such cases up to the crown court.

However, the decision does not just lie with magistrates – a defendant charged with an either-way offence can elect to face a crown court trial if they wish. 

Most solicitors believe, rightly, that their clients have a greater chance of acquittal in the crown court before a jury, than in the magistrates court, where magistrates may be more inclined to convict. 

At present, with a sentencing maximum of six months, most solicitors are content to advise their clients to keep an either-way offence in the magistrates court as there will be a good chance that they will receive, at worst, a short period of imprisonment should they lose their trial or plead guilty. 

That decision would become less straightforward if the magistrates court had powers to imprison for twice as long. Under the change, a defendant charged with a minor offence of violence – perhaps with a potential to run a self-defence or mistaken identification argument – may decide that, given the possibility of a longer sentence, they would rather elect for trial in the crown court, as is their right, than face a sentence of up to a year.   

If this happens, and it will, then Raab’s policy designed to reduce the burden on crown courts, could actually have the opposite effect. And that is not the only flaw in Raab’s plan.

The first point of appeal from the magistrates court is to the crown court. Crown courts are already jam-packed with those who seek to appeal either their sentence or conviction by magistrates or district judges. By increasing the sentencing powers of the lower courts, it is inevitable that the number of appeals by those who believe that the sentence was excessive or that the conviction was unsafe will increase.

This will take up even more valuable time in the crown court and prevent judges and magistrates from their usual work – thus potentially increasing the backlog in both types of court. 

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The other side-effect of the proposal would be the increase in the pressure on prisons. Prisons are already heaving, having seen a massive increase in their numbers in the past decade, and further expansion in numbers would risk taking them close to breaking-point. 

It is right that the backlog in undetermined and ongoing criminal cases needs to be addressed – the crown court now has a backlog of over 60,000 cases, while the magistrates courts have a whopping 395,000 cases still to be heard. 

For years, pressure groups such as the Criminal Bar Association, have argued that the only way to properly address this is to increase funding for the criminal justice system and expand legal aid rates to ensure that advocates are able to appear in cases and that there are enough courts, judges and staff to process them properly. 

Dominic Raab’s announcement may deflect from the travails of his boss, but it will do nothing to reduce the burden on the criminal justice system.   

Gareth Roberts is a barrister

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The Colston Four: It is the Attorney General Who Seeks to Set a ‘Dangerous Precedent’

Published by Anonymous (not verified) on Mon, 10/01/2022 - 10:43pm in

The Colston FourIt is the Attorney General Who Seeks to Set a ‘Dangerous Precedent’

If Suella Braverman decides to refer the Colston statue case to the Court of Appeal – after the four defendants were found not guilty of criminal damage for removing the statue of the slave trader in Bristol – the rule of law in Britain will be significantly eroded, says Gareth Roberts

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The acquittal by a Bristol jury of the four defendants accused of the criminal damage of the statue of slave trader Edward Colston has prompted the Attorney General, Suella Braverman, to consider using her powers under section 36 of the Criminal Justice Act 1972 to challenge the verdict.

Braverman has suggested that the verdict has caused confusion about the law and that she may put the matter before the Court of Appeal for judges to hear the case afresh and produce a legal opinion about the future availability of the defence that was put before the jury.

“Trial by jury is an important guardian of liberty and must not be undermined,” she wrote on Twitter. “However, the decision in the Colston statue case is causing confusion. Without affecting the result of this case, as Attorney General, I am able to refer matters to the Court of Appeal so that senior judges have the opportunity to clarify the law for future cases. I am carefully considering whether to do so.”

The consideration is an unusual step which raises the question of whether Braverman is genuinely motivated by a desire to clarify the law – or politics. The latter is more troubling, throwing doubt over the Government’s commitment to the separation of powers, the independence of the judiciary and the sanctity of the jury system. 

Braverman, is not a criminal lawyer – her background is in planning law. She has very little experience, if any, of juries, or for that matter, crown court circuit judges and the process of a criminal trial. If she did, she would know that, as a lawyer, when the jury retires and the door of the court is slammed shut, there is nothing left to do, except put your trust into the hands of the 12 people chosen and hope that the prosecution and defence barristers have done their job well enough to allow them to reach the right verdict – not necessarily the verdict sections of society may want – but the right verdict.


Colston ReconfiguredA Fulcrum for Future Understanding
Hannah Charlton

She would also know that circuit judges take great care to direct a jury fairly about the law and the evidence, making sure that both sides of the case are properly rehearsed before a jury – indeed, these days judges will give written directions to the jury, with a step-by-step guide to help jurors with their deliberations and remove any confusion that they might have.

Barristers and solicitors involved in the Colston statue trial would have seen the judge’s directions in advance of the summing up and would have the chance to correct any errors in law or any perceived unfairness in the review of the evidence.

The case was presided over by the Recorder of Bristol, His Honour Judge Peter Blair QC – an extremely experienced and able circuit judge. In front of him was a senior barrister for the Crown, and four highly regarded advocates representing each of the four defendants.

The offence of criminal damage is not a particularly complicated area of law. There are a number of well established potential defences available – the most common being that the person charged did not commit the damage, that the damage occurred accidentally, or, that the item damaged was owned by the person who damaged it. Less common, but just as important, is an assertion that the act was justified. In the case of the Colston Four, the defence put forward an argument that the removal of statue was justified as its continued existence constituted a hate crime.

To that end, the defence sought to call expert evidence in the form of the eminent historian David Olusoga, who told the jury that Edward Colston was a man who had murdered and enslaved many thousands of people and that his statue was an affront to the people of Bristol who did not want to celebrate that part of their history.

When the defence made an application to have this expert evidence included in the case, the judge heard its legal argument and decided that it was admissible. At this stage, the prosecution could have appealed the judge’s decision, but did not and the trial proceeded.

Ultimately, the prosecutor made a speech saying that this was a case that had nothing to do with historical or cultural prejudice, but was simply an act of vandalism as the accused had destroyed something that did not belong to them.


Tear Down the Tyrants,Reappraise the Past
Otto English

The jury disagreed and, as can be gleamed from its verdict, concluded that the decision of protestors to destroy the statue of the slave trader Edward Colston was justified.

Many, particularly those on the political right, were appalled by the jury’s verdict and have attempted to label it as a demonstration of ‘wokeism’ and ‘cancel culture.’ Former Housing Secretary Robert Jenrick has claimed that the verdict undermines the rule of law, while his fellow backbench Conservative MP, Tim Hunt, has said that it sets a “dangerous precedent”.

If the Attorney General’s decides to refer the case to the Court of Appeal, she will be attempting to undermine the jury system in the event of a verdict being reached that is at odds with her political philosophy. It is this, not the verdict, that would set a potentially dangerous precedent.

For, if Suella Braverman is successful and manages to change the law to make defences such as those put properly before the jury by the Colston Four defunct, then we are all in danger of becoming a country in which the rule of law is determined by the political will of the party in power.

Gareth Roberts is a barrister

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The post The Colston Four: It is the Attorney General Who Seeks to Set a ‘Dangerous Precedent’ appeared first on Byline Times.

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