Rule of Law

The Crown’s Final Act: Unveiling Insights into Public Law with Professor Maurice Sunkin

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Professor Maurice Sunkin discussed the new relationship between the Crown and the Government

The eagerly awaited concluding part of the series The Crown is set to arrive on 14 December 2023. Professor Maurice Sunkin recently engaged in an interview with Italy’s esteemed public national broadcaster RAI, delving into the intricacies raised by this acclaimed historical drama.

The show, a fictional portrayal of Queen Elizabeth II’s journey intertwined with the pivotal political events of her reign, prompted probing questions regarding public law. During the interview, Professor Sunkin provided insightful perspectives on topics such as the Crown’s impartiality and legitimacy. A noteworthy excerpt from his interview is highlighted below:

What will the reign of King Charles III be like?

His mother was very widely respected and admired and even loved by many. In part because she presented the image of a kindly grandmother. In part, because she had served the country for so long. In part, because people recognised the troubles that she must have confronted. And in part, possibly in large, part because she generally kept herself aloof and apart. She had a deep respect for the sanctity of the institution that she represented. For the most part she kept the Crown away from the trials and tribulations of daily life and politics. This has always been very important.

Charles III is a rather different person – his personal life has been much more public. He is known to have views on matters of public discussion, and has been willing to have his views  expressed. In these senses he is much more likely to make the Crown a more engaged institution. But this carries risks. The Crown’s standing depends largely on its symbolic and institutional status as above and beyond politics and normal life. There are real risks that this status could be challenged if the King becomes  more active and open to personal criticism.

So there’s a very fine balance – between modernising the Crown and shaking off the dust of previous periods while retaining the symbolic status of the Crown as an institution  above and beyond day to day life and politics. We’ll have to see how well that balance is achieved.

How can he maintain his commitment to the environment while preserving impartiality as head of State?

This is one of the challenges that he and his advisers are no doubt thinking about very carefully.  One the one hand he will not want to get too closely involved in political disputation or in direct campaigning. On the other he will be concerned to ensure that the Crown is seen to be aware of, and concerned, about the need for environmental protection.  If he does too much he will damage the Crown by dividing opinion. If he does too little he will damage the Crown by presenting it as unaware, uncaring and out of touch.  

The key will be in his and his family’s own actions. How he is seen to be managing his estates. How he is seen to be conducting his own affairs. Careful attention to matters such as travel. Sensitive organisation of the Crown’s affairs. Supporting environmentally friendly charitable activities

Considering the majority of the population declares themselves as non-Christian (Census 2021), what legitimises the role of bishops in the House of Lords and a King as both head of Anglican Church and State?

This is an important and big question. The King is the head of the Church of England. The Bishops are in the House of Lords because of the standing of the Church of England. Some will see these as out dated relics that no longer fit with a modern liberal pluralist democratic society. In these respects they represent the archaic character of the Crown itself – but they add an increasingly challenging dimension as the UK becomes more diverse and less religious. 

When the King is crowned it will be a heavily religious ceremony rooted in Christian Anglicanism. It will be interesting to see if there is anything in the ceremony to reflect a non Anglican view of the world. Either way it will be interesting to see how people react. There can be little doubt that Charles III is alive to these issues and will do everything he can to strengthen links with non-Anglicans.

Could the reform of the House of Lords, a Labour proposal, change the institutional structure of the State?

Like the Crown, the House of Lords is a feature of the UK’s constitutional system that is not obviously democratic.  But reform has been on the agenda for years and little has been achieved. Whether reform will alter the structure of the state depends of course on the nature of the reform. In my view a second chamber is valuable not least because it diffuses the power of the executive in the HC. But it’s clearly no longer appropriate to have a second chamber with no political legitimacy. So, a way needs to be found to provide political legitimacy without simply duplicating the power relationships in the HC.  If this can be done it will significantly strengthen the work of Parliament. 

 Is it time for the UK to have a written Constitution?

This is a good exam question for first year law students. The UK constitution is a complete mystery to most people –even to those of us who haves studied or work with it for years. Every time public issues arise – such as around the power of the executive in relation to Brexit or its ability to prorogue Parliament – or about the powers of the executive to send troops abroad – we realise how little we understand about some of the basics of our constitution. 

So, one of the key benefits of attempting to write down our constitution down is educational we would learn more about it. Key issues – such as around matters that we’ve been talking about – would be more widely discussed including in schools.

Setting things in written would also add clarity. If the key institutions and their powers and responsibilities  were set out in a single clear document this would have tremendous value and add clarity and help most of us understand the system – it would in sense be a great boost to our democratic culture and to the rule of law.

That’s not to say that everything could be written down. We shouldn’t assume that setting out the basics would resolve all the problems or tensions. The system would still have to operate and practice and culture would still evolve. But we would have a clearer written starting point would be a great help. I’m a great enthusiast for trying to present the nature of our system as clearly as possible and at the moment too much power is in the hands of those on the inside who have the ability to determine what the constitution requires.

Human Rights is a good example. The Human Rights Act 1998 which incorporated the Convention Rights made these rights much clearer and accessible. Now there are threats to repeal the Act and replace it with more amorphous principles. Such a reform will not add clarity but will make the system less clear and possibly open the UK to greater scrutiny from the ECtHR.  

The Rwanda Plan is Unlawful, the Supreme Court Rules

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The UK’s Supreme Court on Parliament Square, Westminster

The UK’s long-delayed and controversial proposal to deport asylum-seekers to the central African state of Rwanda was rejected by the Supreme Court on Wednesday 15 November 2023.

The Supreme Court unanimously dismissed the Home Secretary’s appeal and upheld the Court of Appeal’s earlier conclusion that “the Rwanda policy is unlawful”. This is because there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda. Lord Reed and Lord Lloyd-Jones gave a joint judgment with which the other members of the Court agreed.

The Supreme Court cited evidence by the UN refugee agency indicating Rwanda’s lack of adherence to the non-refoulement principle and raised doubts about the Rwandan authorities’ fairness of asylum claim assessments and human rights violations.

The Court made it clear that it was “not concerned with and should not be regarded as supporting or opposing any aspect of the political debate surrounding the policy”. However, its decision deals a blow to the government’s pledge to “stop the boats”, and with the Rwanda plan being at the centre of the recently passed Illegal Migration Act, a reassessment of asylum policies seems inevitable now.

In October 2022, the House of Lords International Agreements Committee published its 7th Report of Session 2022–23 on its inquiry into the Memorandum of Understanding (MoU) between the UK government and the government of the Republic of Rwanda for the provision of an Asylum Partnership Arrangement, citing written evidence submitted by Professor Theodore Konstadinides and Dr Anastasia Karatzia of the Essex Law School.

Prof. Konstadinides and Dr. Karatzia had questioned whether an MoU is an appropriate vehicle for the relocation of asylum seekers deemed to have arrived illegally in the UK, “especially given: (a) the implications it has for individual rights, and (b) the assurances and safeguards included in the MoU, particularly those relating to inspection and monitoring, a relocated individuals’ access to legal assistance, and data protection which give rise to legitimate expectations as to the other party’s conduct.”

The Research Visibility Team interviewed Prof. Konstadinides, co-director of the Constitutional and Administrative Justice Initiative (Essex CAJI) and academic lead for Public Law, to find out more about the Supreme Court’s ruling and its implications.

The Supreme Court’s ruling emphasised serious flaws in Rwanda’s asylum procedures. Could you elaborate on these shortcomings that led the court to determine it wasn’t a safe option for asylum seekers?

Removals to Rwanda, a practice established by the Home Secretary’s immigration rules, were held to be unlawful by the Supreme Court because of substantial evidence, including over 100 examples from the UN Refugee Agency, regarding Rwanda’s inadequate system of processing asylum claims. Rwanda’s poor human rights record and the lack of guarantees that upon arrival to Rwanda asylum seekers would have their claims properly examined by the respective authorities could result to further removal and repatriation where they would face a real risk of ill-treatment. The Supreme Court took this possibility very seriously despite the Home Secretary’s reassurance that Rwanda entered the deal in good faith.

There is a legal rule, or prohibition if you may, that refugees must not be returned to their countries of origin if their life or freedom will be under threat. This principle is known as ‘non-refoulement’ and it is a core principle of international law. Our colleague Prof. Geoff Gilbert is an expert in international refugee law and could tell you more about it. Suffice to say for now that asylum seekers are protected against refoulement by several international treaties to which the UK is a party including the UN Refugee Convention, the UN Convention against Torture and the European Convention on Human Rights (ECHR). As Lord Reid emphasised it is not, therefore, only the ECHR which is triggered here regarding the returning of asylum seekers in their country of origin without proper examination of their claims. The obligations under these international treaties are also reflected in our statute book for some time now, see for instance, the Asylum and Immigration Appeals Act (1993); the Nationality, Immigration and Asylum Act (2002) and, last but not least, the Human Rights Act (1998).

This explains in a way why the Supreme Court was unanimous that, once there are substantial grounds for believing that asylum seekers who are sent to Rwanda will be at real risk of ill-treatment or refoulment, there is only one way to decide this case.

The government is considering emergency legislation to declare Rwanda a safe country for asylum seekers, bypassing the Supreme Court’s judgment. What legal and political challenges might arise from such a move, and how could it impact the ongoing debate within the Conservative Party on issues like leaving the European Convention on Human Rights?

The government will try to negotiate changes and inject extra safeguards to the Rwanda deal. Of course, a revised or renewed deal cannot stop fresh litigation, especially challenges against the decisions of the Home Secretary made in light of such deal. Following the Court’s decision on the 16th of November, the Prime Minister expressed the will to use Parliament as a vehicle to reverse the Supreme Court’s unanimous decision.

If Parliament were to pass such legislation that would override the ECHR and the HRA (which gives the ECHR domestic effect) in relation to non-refoulment claims that would be the law of the land due to Parliamentary Sovereignty. But that would not be the end of the matter as far as international law is concerned: the government’s policy could still be in breach of international law. Also, as Lord Reid emphasised, the ECHR and the HRA are not the only relevant pieces of international and national legislation that protect asylum seekers from refoulment.

This takes us to your question about leaving the ECHR altogether, getting Parliament to repeal the HRA and either resuscitating Dominic Raab’s Bill of Rights Bill or relying on a combination of rights under the common law and statute and other international obligations that have found their way into our statute book. I don’t personally think it is a good idea to establish a record of treaty withdrawal every time we are unhappy with the outcomes that international law produces, although I worry that leaving the ECHR will become part of a future Tory Manifesto that has been flirting for some years now with the idea of repealing the HRA or “updating” it.

Unfortunately, this government has been too ready in its rhetoric to breach international law, albeit in a specific and limited way which is worrying in terms of the rule of law which requires compliance by the state with its obligations in both national law and international law.

Given the ruling on the Rwanda plan and its implications for the UK’s asylum policy, what do you foresee as potential avenues for the government to reconsider its approach? Could the quest for a new safe third country lead to similar legal challenges, and how might this affect the broader discourse on asylum processing in the UK and globally?

A new Bill that will, according to Suella Braverman’s response on X (formerly Twitter), “block off ECHR, HRA and other routes of legal challenge” is a legal fiction. As Prof. Mark Elliott (University of Cambridge) responded to her post, domestic legislation cannot just “block off” the ECHR, which the UK will still be obliged in international law to comply with for as long as it remains a member of the Council of Europe. Prior to legislation, a new treaty with Rwanda or another safe third country is possible, however. The Supreme Court, and the Court of Appeal before it, said explicitly that if there are no grounds for believing that asylum seekers who are sent to Rwanda or a third state for that matter will be at real risk of ill-treatment then the policy is sound and lawful.

The current memorandum of understanding between the UK and Rwanda provides some reassurance but being an expression of political will and not legally binding, it cannot be relied upon by asylum seekers. A treaty, however, can better protect such commitments, something that I initially argued with Dr. Anastasia Karatzia in our evidence to the International Agreements Committee of the House of Lords that got cited in the end. Following the judgment yesterday, the UK’s Prime Minister publicly stated that his government has been working on “a new international treaty with Rwanda” which will push to “ratify without delay” in Parliament and “will provide a guarantee in law that those who are relocated from the UK to Rwanda will be protected against removal from Rwanda”.

Some people, including myself, will still find this solution to the issue disappointing given Rwanda’s poor track record of human rights protection, judicial independence, and lack of adherence to the terms of similar agreements with other countries in the past, especially on non-refoulment of asylum seekers. However, yesterday’s judgment is a small legal victory insofar as the rule of law is concerned.

Unlike the initial memorandum that the government signed with Rwanda, a treaty will be subject to Parliament’s statutory role in scrutinising treaties as set out in the Constitutional Reform and Governance Act 2010. In the grand scheme of things, this may look like a small step. But let me remind readers that the UK-Rwanda memorandum was only published when it became operational on signature which left no space for any type of review or revisions by Parliament.

If the House of Commons passes a resolution opposing the ratification of a new UK-Rwanda treaty, it triggers an extra 21-day delay, preventing the government from proceeding with the ratification during this time. However, there is a catch: a minister has the authority to ratify a treaty without following this process, but this option becomes void if either House passes a negative resolution. Essentially, this represents a modest legal triumph.

Illegal Migration Bill: Essex Law School experts on the international system of protection against arbitrary detention express concerns in their written evidence to the JCHR

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On 5 April 2023, Dr. Sabina Garahan (Lecturer, Essex Law School) and Dr. Matthew Gillett (Senior Lecturer, Essex Law School submitted evidence to the Joint Committee on Human Rights (the “JCHR”) as part of its legislative scrutiny of the Illegal Migration Bill. Their submission focused on detention-related questions posed by the JCHR.

Dr. Garahan recently completed her AHRC-funded research on the right to liberty under European human rights law. Dr. Gillett is the Vice-Chair of the UN Human Rights Council’s Working Group on Arbitrary Detention (the “Working Group”). The submission expresses shared concerns that the proposed legislation conflicts with fundamental protections against arbitrary detention set out in the European Convention on Human Rights (the “ECHR”) and the International Covenant on Civil and Political Rights (the “ICCPR”).

The authors’ submission identifies several areas in which the Bill conflicts with the right to liberty as enshrined in Article 5 of the ECHR. Importantly, it raises the possibility that the UK Government may be the first Council of Europe Contracting State in history to be found in breach of Article 17, which prohibits the destruction and excessive limitation of ECHR rights.

Dr. Garahan’s and Dr. Gillett’s written evidence equally highlights the potential breach of Article 18 in conjunction with Article 5, on account of the likelihood that the legislation was introduced in bad faith under the ECHR – namely, on the basis of aims not listed under Article 5. Immigration detention that is predominantly imposed on grounds other than those permitted by Article 5 will be found to violate Article 18. The Government’s documented anti-migrant rhetoric, which has sparked significant concerns among international expert bodies, and the expedited passage of the Bill through Parliament strongly indicate the existence of bad faith.

Finally, the submission addresses likely violations of Article 9 of the ICCPR, which protects against arbitrary detention in a range of contexts including immigration-related processes, as held by the Working Group. In introducing discretionary powers to detain anyone suspected of entering the UK unlawfully, for such period as is “in the opinion of the Secretary of State” reasonably necessary (namely, without any time limit), the Bill undermines the exceptionality and necessity limitations of immigration detention.

Dr. Garahan and Dr. Gillett are members of Essex Law School/Human Rights Centre and the Essex Constitutional and Administrative Justice Institute. Their full submission can be accessed on the JCHR website here and a copy can be downloaded from our ELR Blog below.

garahan_gillett_illegal-migration-bill_jchr-evidenceDownload

Cuts to Legal Aid and Access to Justice: The View from Family Courts

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By Dr. Konstantinos Kalliris, School of Law, University of Essex

Legal aid, as we know it today, is a relatively recent institutional development, but the concept is old. From the Court of Requests in Tudor and early Stuart times to the pro bono advice offered by the Poor Man’s Lawyers Movement, the idea that everyone is entitled to some form of legal advice and support has been present in the United Kingdom for a long time.

However, legal aid as charity did little to help those unable to pay for legal counsel (it was, after all, mostly restricted to pre-trial advice) or to level the legal playing field, as the courts continued to be part of the modus vivendi of the aristocracy. Due to strong opposition to the idea that everyone should be entitled to legal aid (mainly for fear of encouraging people to be litigious), some of the first formal policies were, perhaps inevitably, heavily moralized. For example, the Poor Prisoners Defence Act 1903 included provisions for legal aid for prisoners who had a defence.

The end of World War II led to the foundation of legal aid roughly as we know it today. Since then, several reforms have attempted to manage both the volume and the cost of legal aid, with the post-1986 cuts being the first concentrated effort to reduce the budget. In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced further cuts, which heavily affected several areas of litigation and excluded most private family law cases from the scope of legal aid.

LASPO and the Right to Legal Aid

LASPO’s explicit goal was to save money and family law was one of its main targets. While public law proceedings and the representation of children generally remained in scope, private family law was the reform’s main ‘victim’. Most private family law cases, including procedures as common and stressful as divorce and child contact, became ineligible for legal aid. Cases involving children or finance remain in scope only where there are issues concerning domestic violence or child abuse and specific evidence is provided (the evidence-related requirements relaxed in 2018). The Ministry of Justice expected that this new policy would also discourage litigation on private family problems, which could be resolved out of court. Apparently, the idea that people become unreasonably or excessively litigious if legal support is readily available still survives.

One possible concern with this blanket approach is that the exclusion of entire areas of law seems arbitrary and irreconcilable with the very raison d’ être of legal aid. Even where alternative means of dispute resolution (such as mediation) are available, some of these cases may inevitably end up in court. Furthermore, mediation itself requires legal support and, as we will see, there is evidence that people need to be advised by a lawyer that it is an available option. The problem, therefore, with the removal of almost the entire area of private family law from civil legal aid is that this policy choice may restrict access to justice for many people, without consideration for their needs and circumstances.

The idea that access to civil legal aid is inherently linked with effective access to justice is part of the European legal tradition. Article 47 of the European Charter of Fundamental Rights 2000 illustrates the point: ‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’ However, there is no universal or unconditional right to legal aid, especially with regard to civil law cases. While efficient access to justice remains important for the European Court of Human Rights (‘the Court’), it has been ruled that Article 6 § 1 does not imply that the State must provide free legal aid for every dispute relating to a ‘civil right’ (Airey v. Ireland, § 26). The crucial question is whether the lack of legal aid would deprive the applicant of a fair hearing and the answer depends on the specific circumstances of the case (Airey v. Ireland, § 26; Steel and Morris v. the United Kingdom, § 61; McVicar v. the United Kingdom, § 48).

The Court has identified a set of criteria for assessing the states’ obligation to make legal aid available in non-criminal proceedings. These are: the importance of what is at stake for the applicant (Steel and Morris v. the United Kingdom, § 61; P., C. and S. v. the United Kingdom, § 100); the complexity of the relevant law or procedure (Airey v. Ireland, § 24); the applicant’s capacity to represent him/herself effectively (McVicar v. the United Kingdom, §§ 48-62; Steel and Morris v. the United Kingdom, § 61); and the existence of a statutory requirement to have legal representation (Airey v. Ireland, § 26; Gnahoré v. France, § 41). Two further criteria have emerged in the Court’s case law regarding the conditions attached to legal aid: the financial situation of the litigant; and the prospects of success in the proceedings (Steel and Morris v. the United Kingdom, § 62).

LASPO and Access to Justice: the Project’s Findings

The question that naturally emerges from these general remarks is whether LASPO was successful in saving money without ignoring the above criteria and restricting access to justice for many people who require legal aid to effectively exercise this right. In a research project funded by the British Academy, Theodoros Alysandratos, Mariol Jonuzaj and I looked at the effect of LASPO on family law cases, hoping to shed some light on these issues.

First, we find that legal aid funding started to drop in the first financial quarter of 2014 and kept on falling for the next two years. At the end of this period, funding had dropped by 35% relative to the amount approved before the fall started.

Legal Aid by Financial Year and Financial Quarter. The image illustrates the percentage change on a year-to-year basis (from the project’s findings)

Then, we observe that the number of funded cases started to drop in the first financial quarter of 2012 and continued for 3 years. At the end of this period about 60-65% fewer cases were being funded. The discrepancy in the timing of the effects between funding and funded cases can likely be attributed to the disbursement of commitments prior to LASPO coming into effect.

Volume by Financial Year and Financial Quarter. The image illustrates the percentage change on a year-to-year basis (from the project’s findings)

In terms of saving money, the case of private family law reveals that the LASPO had an immediate effect. Whether this effect was sustained in the years that followed remains to be seen. The same applies to the number of cases that received legal aid, since it also dropped significantly in the years immediately following LASPO. This means that, at least for a certain period of time, a considerable number of people was denied access to legal aid for private family law cases (with the exceptions noted in the introductory paragraph), regardless of their financial situation and/or ability to secure some kind of legal advice, let alone representation.

Did this lead to an increase in the number of cases going to mediation or the number of Mediation Information and Assessment Meetings (MIAMs)? According to the post-legislative memorandum released by the Ministry of Justice in 2017, this was certainly not the case, presumably because it is only after receiving legal advice that most people see mediation as an option. In fact, before LASPO came into force, 4 out of 5 cases that ended up in MIAMs were referrals from legally aided solicitors. To make things worse, the Legal Aid Agency reported in 2017 that only 61% of completed mediations were successful (slightly down from the 68% reported for 2013-2014).

This evidence suggests that, as far as legal aid is concerned, many people in England and Wales are experiencing a return to a pre-World War II world. Their chances of securing free legal advice and representation are very slim, as their only avenue is to contact organisations with already limited resources, such as Citizens Advice and Family First. University Law Clinics also shoulder some of the burden, but they cannot offer legal representation. In a sense, civil legal aid is to an extent seen, once again after almost a century, as a form of charity.

However, as lawyers realised at the time, charity is not enough to ensure effective access to justice for all. As one of the founders of the Poor Man’s Lawyers Movement observed more than 120 years ago, extensive lack of free access to legal advice and representation for those who most need them makes the rule of law ‘an anaemic attenuated make-believe which we flash in the eyes of the poor as justice’.

Investigations in Armed Conflict

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Investigations into alleged violations of international humanitarian law and international human rights law in armed conflict are crucial to the implementation of these bodies of law.

There are, however, numerous legal and practical challenges that arise when considering a State’s obligations under international law with regard to such investigations.

These include establishing the bases and scope of the duty to investigate under both bodies of law, and determining the way in which these investigations must be carried out.

Furthermore, addressing the framework for investigations in armed conflict necessarily requires an examination of the interplay of international humanitarian law and international human rights law.

In her new chapter in the latest edition of the Research Handbook on Human Rights and Humanitarian Law, Dr. Claire Simmons, a researcher at the Essex Armed Conflict and Crisis Hub (under Essex’s Human Rights Centre), focuses on the concept of effectiveness of investigations under international law.

Dr. Simmons addresses, in particular, the legal and practical challenges surrounding the conduct of investigations in armed conflict, taking into account the complementary way in which both bodies of law interact.

Research Handbook on Human Rights and Humanitarian Law, edited by Robert Kolb, Gloria Gaggioli, and Pavle Kilibarda

Chapter full citation: Claire Simmons, ‘Investigations in Armed Conflict’, in Robert Kolb, Gloria Gaggioli, and Pavle Kilibarda (eds), Research Handbook on Human Rights and Humanitarian Law: Further Reflections and Perspectives (Elgar 2022).

Why the UK Government’s Plan to Overturn Court Decisions is a Bad Idea

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By Maurice Sunkin, Theodore Konstadinides and Lee Marsons, School of Law, University of Essex

The UK government is pursuing multiple legal reforms designed to rebalance “the relationship between the government, parliament and the courts” – a commitment made in the Conservative party’s 2019 election manifesto. Many of these reforms will affect how people can hold the state accountable, potentially undermining independent scrutiny and weakening the role of the courts in holding the government to account.

Among them is a review of the 1998 Human Rights Act – the law that allows people to enforce certain human rights in British courts – and proposed changes to judicial review – a process by which people can ensure that the government obeys the law.

We were given a further insight into the government’s thinking about how it might continue to “rebalance” its relationship with the judges, with details of the proposals emerging in the press. This includes a possible “interpretation bill”, which would be a yearly act of parliament by which the government would ask MPs to overturn court decisions that the government does not like.

Alongside a growing number of voices, we argue that this is a bad idea. Even if this specific policy is not adopted, these arguments are relevant to any proposal that makes overturning court decisions routine.

Problems with the government proposals

Principally, it is difficult to see what problem this is trying to solve. Parliament is sovereign and can already overturn any court decision, from a small claims case all the way to the UK Supreme Court. This proposal, then, will give parliament zero additional powers beyond those which it already has. At most, it would give parliamentarians a regular block of time to legislate about cases the government dislikes. But it is questionable whether such a regular event is necessary and it could descend into a farcical pantomime of “find judgments to disagree with to justify this exercise”, rather than a serious focus on judgments that raise genuine, principled or pragmatic concerns.

Also, while parliament can already overturn cases, doing so is by no means routine. This proposal would make the irregular regular. It would make the non-routine routine. It would remove the political heat from overturning judicial decisions. Given that the idea is apparently rooted in government frustration with losing important judicial reviews, the proposal would mark a significant indicator of the diminishing status of the rule of law in British democracy.

There are also several important pragmatic concerns. If a carefully reasoned decision of a senior court is to be overturned, this should only be after parliament has fully considered the case and its real-world implications, especially for MPs’ constituents. MPs will need to examine how overturning this case could, for example, make it more difficult for them to challenge an unlawful benefit sanction, a discriminatory stop and search or incorrect decisions about a child with special educational needs. These matters deserve careful attention. It is difficult to see how parliament could perform this assessment on multiple cases at once as part of a general annual exercise.

Parliament should also make a careful assessment of whether, for example, the problem is the whole judgment and all its consequences or only part of the judgment and only the consequences in a few instances at this particular time. On thoughtful reflection, reversing the whole judgment forever could be disproportionate.

Being more reflective about individual cases allows time for consultations, so that the government can consider the views of experts in that area of law, and more importantly, people disadvantaged by overturning the decision. This should include impact assessments to consider the consequences for less powerful, underrepresented groups like the disabled, women and racial and religious minorities.

The consequences of overturning the case for the broader constitutional system must also be examined. Would it, for example, promote or undermine government accountability, fair procedures and government obedience to the law?

It is not good law-making to overturn important judgments as part of a generic package when the consequences for ordinary people could be so great.

Retrospective decisions

Further serious problems would arise if the interpretation bill consistently operated retrospectively. This is when the new interpretation would apply not just to future cases but to all past cases as well. People and public bodies plan their budgets, allocate their resources and make their decisions based on the law as it stands. Abolishing the previous understanding of the law all at once could generate legal uncertainty, undermine confidence in the law and damage people’s expectations about what they were entitled to.

Worse, claimants may not even bother to bring some cases for fear that victories would simply be overturned retrospectively. There would be no reason to waste the time, resources and effort. Government accountability could be undermined if people were dissuaded from bringing cases on this basis. Even the apparent support for these proposals at senior ministerial levels may send a message and create a chilling effect. Again, this is legal. But it is not the right course of action. Convenience for the government is not the same thing as the public interest.

At best, the proposal to allow parliament to routinely overturn judicial decisions would be poor legislative practice unconducive to thoughtful law-making. At worst, it would be a significant nudge of the constitution in the government’s favour and away from independent judicial scrutiny. It could threaten government accountability and the rule of law and damage the status of the UK as a model of liberal democracy.

This article was first published on The Conversation and is reproduced here under a Creative Commons Licence.

Incremental Development of a Legal Framework for Arbitration in Emerging Markets: A Case Study of Construction Arbitration in Nigeria

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Dr. Fikayo Taiwo, Lecturer in Law at the University of Essex, has concluded her Ph.D. thesis titled ‘Incremental Development of a Legal Framework for Arbitration in Emerging Markets: A Case Study of Construction Arbitration in Nigeria’.

The problem the thesis sought to investigate is the continued exportation of Africa-related disputes for arbitration outside of the continent based on a perceived lack of an appropriately attractive seat of international arbitration within the region.

Given the economic impact of arbitration activity on a nation’s gross domestic product (GDP), the issue of capital flight was especially concerning.

To this end, the aim of the thesis was dual: first, to ascertain the viability of existing frameworks for commercial arbitration in African emerging markets for the purposes of promoting their reputation as seats of international arbitration; and second, to extend the literature on the African Union’s economic integration agenda that has recently been brought to the fore again by the Agreement establishing the African Continental Free Trade Area (AfCFTA).

In dealing with the problem, Dr. Taiwo set out to investigate the main research question of the extent to which a sector-specific specialist arbitration framework could enhance the right of access to justice.

Using a hybrid methodology and the single case study design, the central argument was that, to the extent that the necessary political will is present, identifying small spaces for reform (especially through specialist arbitration frameworks) and dealing with these issues in chunks is an effective way of progressively improving the parameters of access to justice, building attractive seats of international arbitration in Africa and consequently, contribute to economic and sustainable development.

One of the original contributions the thesis makes is applying access to justice from human rights law to commercial law as a major conceptual basis for the research to address not only arbitration matters but also other issues that parties take into consideration when choosing a seat of arbitration.

The wider significance of the work lies in its ability to not only reinforce the idea that the law is part of the development and should be part of critical sectors like the construction industry but also to inform law and policy for commercial arbitration in emerging markets and international institutions.

The thesis also expands the knowledge base of access to justice and the role it plays in issues beyond the realm of human rights law and discourse.

Dr. Taiwo plans to publish journal articles from her thesis to further explore the theme of the interplay of commercial dispute resolution and human rights for sustainability, and pathways to effective regionalisation through commercial arbitration in Africa.

The Rule of Law: Driving Water and Climate Inequality?

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Image: Dravyavati R., Jaipur by Rod Waddington licensed under CC BY-SA 2.0

By Dr. Birsha Ohdedar, Lecturer in Law, University of Essex

The rule of law broadly underlies the idea that ‘no one is above the law’ and that the law is created and applied fairly. The dominant liberal-legal narratives on the rule of law often do not go much beyond this. That is, they do not ascribe content about ‘what that law should be’. Rarely does this narrow ‘rule of law’ speak to any right to have law made to protect the planet and realise the needs of marginalised and deprived peoples. As Baxi puts it, there is no theory of ‘the good’ in the rule of law. There are only minimal procedural ideas that inform the dominant narratives on the rule of law.

The narrow conception of ‘the rule of law’ serves particular ideological ends. The last three decades have shown that the rule of law has been a handmaiden of economic growth and capitalism. Growth that has brought about ecological disorder at a planetary scale. For instance, the rule of law has been used as an ideological concept by international development banks – such as the World Bank and the Asian Development Bank – to pursue legal, policy and technical reforms in the Global South. Such use has transformed the reason for the law, as Krever argues, to promote the mantras of economic efficiency and entrepreneurial activity.  

Water and Climate inequality in Jaipur, India

The rule of law and its relationship with climate change can be illustrated by looking at the Global South’s water and climate conflicts. The city of Jaipur in India is a growing city in the northwestern state of Rajasthan. Like many cities in the Global South, its economy has been urbanising and growing, driven by national and international policies.

However, the urbanisation in Jaipur operates in the context of water and climate stress. In India today, 600 million people face extreme water stress, and about 200,000 die every year due to inadequate access to safe water. Climate change is intrinsically woven into this water crisis, with 44 per cent of the country under various degrees of drought in 2019, increasing the intensity of floods, cyclones and grave climate impacts. Last year, massive farmer protests, which gained worldwide attention, were partly driven by the growing water crisis in rural areas.

The ability of Jaipur to grow in deeply unequal ways has been dependent on taking water from rural communities. This has created further climate vulnerability. A key water source for Jaipur is a reservoir outside the city, connected via a pipeline. The pipeline was built in the 2000s, funded by loans from international development banks. As part of the loan conditions, there were reforms, and state utilities were corporatised. Water utilities were to be reformed to operate under market logic, driven by profit and cost-recovery, rather than treating water as a public good that served a broader social and ecological purpose.

The reforms requested by international development banks transformed how water was used and distributed. The state was now incentivised to take water and re-direct to where it earned the most money. This was for city dwellers and industrial users who paid higher tariffs for water and are more likely to pay for greater use. Poorer rural and urban communities, less financially worthy, lose out. Law and policy were central in this reform and transformation.

Law also played a role in ensuring enough water was available for the city. In earlier years, communities living around the river that now supplied water into the pipeline built small earthen dams to capture water for their use and livelihoods. The judiciary consistently upheld a government ban on these dams. This was because of a perceived threat to the sustainability of the river that was now feeding the city.

Meanwhile, groundwater, a significant water source for many, is critically overexploited in the region. Colonial groundwater laws in India have notoriously allowed landowners the right to exploit as much as they wish. While the state can restrict future exploitation in overexploited blocs, it cannot stop existing users. Participatory governance, so often tied up in neoliberal and the rule of law rhetoric, has also failed to shift power structures that depend on who owns land, has water rights, and thus wealth. The rule of law stays silent on these broader questions.

The impacts on rural communities are devastating. Communities that relied on such water for livelihoods, growing food, and day-to-day use, now see pipelines that take water into the city, passing their houses. When construction of the pipeline began, protesters were shot and killed by police. Today, communities struggle with water scarcity and water quality. As climate change intensifies, the city demands more water, and conflicts ensue. With worsening water conditions in villages, people rely on cities’ employment opportunities to migrate to urban areas.

A combination of legal, policy and technical reforms drives this ‘accumulation by dispossession’. Certain actors have benefited (namely urban industries and wealthier urban residents) and profited from the dispossession of water and other resources from the rich.

A Different Rule of Law

The lessons from this small example are that the rule of law acts as either a silent actor or a handmaiden of social and ecological plunder. The perception of objectivity and neutrality of the law masks its deployment by powerful actors. Thus, we should not assume that the ‘rule of law’ is inherently positive in our efforts to have a fairer and more habitable planet.

At the same time, the rule of law is a concept capable of a radically different meaning. Like many other concepts, such as human rights or good governance, its content can be derived and transformed as a result of concrete social, legal, and political struggle. The rule of law should be rooted in democracy. However, beyond merely the procedural, participatory sense, it can include democratic re-commoning of natural resources like water. Indeed, a ‘bottom up’, ‘ecological’, rule of law, would entail supporting the efforts of peoples’ struggles to define an ecologically and socially just law.

This article was originally published in The Rule of Law and Climate Change Blog, run by UCL Centre for Law and Environment. The post is reproduced on the ELR Blog with permission and thanks.

‘Cyber Due Diligence’: A Patchwork of Protective Obligations in International Law

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Photo by Kevin Ku

With a long history in international law, the concept of due diligence has recently gained traction in the cyber context, as a promising avenue to hold states accountable for harmful cyber operations originating from, or transiting through, their territory, in the absence of attribution.

Nonetheless, confusion surrounds the nature, content, and scope of due diligence. It remains unclear whether it is a general principle of international law, a self-standing obligation, or a standard of conduct, and whether there is a specific rule requiring diligent behaviour in cyberspace.

This has created an ‘all-or-nothing’ discourse: either states have agreed to a rule or principle of ‘cyber due diligence’, or no obligation to behave diligently would exist in cyberspace.

In their new article in the European Journal of International Law, Dr. Antonio Coco, Lecturer in Law at the University of Essex, and Dr. Talita de Souza Dias, Postdoctoral Research Fellow at the Oxford Institute for Ethics, Law and Armed Conflict (ELAC), propose to shift the debate from label to substance, asking whether states have duties to protect other states and individuals from cyber harms.

By revisiting traditional cases, as well as surveying recent state practice, the authors contend that – whether or not there is consensus on ‘cyber due diligence’ – a patchwork of different protective obligations already applies, by default, in cyberspace.

At their core is a flexible standard of diligent behaviour requiring states to take reasonable steps to prevent, halt and/or redress a range of online harms.

A copy of the authors’ article can be accessed here.

This is an Open Access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted reuse, distribution, and reproduction in any medium provided the original work is properly cited.

Article full citation: Antonio Coco, Talita de Souza Dias, ‘Cyber Due Diligence’: A Patchwork of Protective Obligations in International Law, European Journal of International Law, Volume 32, Issue 3, August 2021, Pages 771–806, https://doi.org/10.1093/ejil/chab056.

The Role of Courts in Tackling Climate Crisis

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Photo by Markus Spiske

Dr. Birsha Ohdedar, Lecturer at the School of Law & Human Rights Centre of the University of Essex, recently spoke at a special side event during COP26, hosted by global law firm Hausfeld, the British Institute of International and Comparative Law (BIICL) and the University of Glasgow on ‘Mobilising the Rule of Law in Climate Change’.

Birsha spoke alongside Dr. David R. Boyd (UN Special Rapporteur on Human Rights and the Environment), Prof. Michael Gerrard (Columbia Law School), Prof. Christina Voigt (the University of Oslo and Chair of the IUCN World Commission on Environmental Law, Co-chair of the Paris Agreement´s Compliance and Implementation Committee). The panel was chaired by Ingrid Gubbay (Hausfeld). The event also included keynotes from Mary Robinson (former President of Ireland) and Vanessa Nakate (Climate Justice advocate)

The panel addressed the issue of climate litigation. The role of litigation has been a rapidly emerging area in recent years. The Paris Agreement, signed in 2015, catalysed thousands of cases around the globe and has become a way to hold governments and corporations to account.

The panel built on discussions that took place in July at a ground-breaking global summit entitled ‘Our Future in the Balance: The Role of Courts and Tribunals in Meeting the Climate Crisis’, which resulted in a landmark Declaration outlining the role of the law and judiciary in addressing climate change.

Birsha’s presentation discussed the role of the judiciary in South Asia – its procedural and substantive innovations that have led to environmental rights-based public interest litigation since the 1980s. These innovations hold much promise in addressing the climate crisis.

However, as Birsha explains there are wider political-economy questions of how the courts deal with climate issues that may create obstacles. For instance, the deference to the executive on large economic projects (which often involve further climate harm), issues with enforcement of decisions, the types of environmental claims it favours, and how the judiciary deals with trade-offs between rights, justice and climate action.

In relation to the last point, Birsha argues that we may see an increase in litigation around ‘green’ projects, which negatively impact people’s rights, for instance, dispossession of land for solar energy, and for forest conservation. Thus, we need to work with lawyers and judges to better understand climate issues under a justice and rights framework, that doesn’t see ‘climate action’ further marginalising the already marginalised.

Birsha’s recent work on climate litigation includes a book chapter on litigation in India and Pakistan and a forthcoming article on climate adaptation, vulnerability and litigation in the Journal of Human Rights and Environment.

The presentation is available in the video below: