Tony Blair and Gordon Brown were the last two consequential Prime Ministers of the United Kingdom. They understood what they wanted to achieve and had a strategy to implement it. Since Brown left office, it has all been a strange combination of bland technocracy and crisis management. The image which comes to mind when trying to think of a suitable metaphor for Government since 2010 is that of a bank manager continually having to try to stomp out a series of fires in his office rubbish bin – and gradually growing more sweaty, puce-faced and bedraggled as a result. Blair and Brown were different: they each had their eye on the future, and they made big, long-lasting changes to the U.K. constitution accordingly.
The most significant feature of the New Labour constitutional realignment was the enactment of the Human Rights Act 1998 (HRA). The HRA is the biggest of conservative commentariat bugbears, given a run for its money only by the Equality Act 2010 (itself best thought of as an extended riff on chords which the HRA first struck). But it is surprising how few of its opponents take the time to analyse and describe what exactly it does and why. This has resulted in a failure amongst conservatives to think through human rights reform strategically (although Dominic Raab, former Secretary of State for Justice, gave it a decent shot; more on him, perhaps, in future posts). Here, I submit for your amusement my own thoughts on the matter.
The HRA is best understood as the crowning achievement of what John Gray once called the dream of liberal legalism. It is striking how many New Labour high-ups – Jack Straw, Stephen Byers, Geoff Hoon, Harriet Harman – were former lawyers, but even more striking that both Tony Blair and his wife, Cherie Booth, were barristers. These were all people who would have gone to university in the 1960s and 1970s and imbibed the notion – then coming to prevalence in law schools on both sides of the Atlantic – that the job of lawyers, and indeed law itself, was not to provide and apply a mere framework of rules, but to give effect to and promote certain values. Law, they would have been told – largely implicitly – was the way to enshrine progressive ideals as being beyond politics, and therefore beyond opposition or democratic challenge. And it followed that as soon as Blair’s Government came to power, it was going to put this vision of law into effect: it was, so to speak, going to constitutionalise New Labour’s “century of progressive politics” and transform both law and politics in the U.K. for good.
The HRA, then, at heart represents a judicialisation of politics. It seeks to transfer political decision-making away from democratic processes and into the courts, where it will be unsullied by whatever grubby, atavistic views exist amongst the electorate. And it is very important to be clear about this, because ever since the time it was enacted people have been describing the Act, misleadingly, as simply a way to incorporate the rights contained in the European Convention on Human Rights (ECHR), originally ratified in 1951, into U.K. law. The U.K., being what is called a ‘dualist’ state, must pass an Act of Parliament in order to give effect to an international treaty in domestic law, and this, it is commonly thought, is what the HRA was chiefly for. It just ‘at long last’, some 47 years after the fact, made the rights contained in the ECHR enforceable in U.K. law, by U.K. courts.
But the Act does not in fact do this (although legal academics and lawyers – I am myself guilty – sometimes say as much in shorthand when describing what the HRA is for). Rather, it creates within U.K. law a set of parallel ‘Convention Rights’ to those that exist in the ECHR – expressed in the same terms, but not on the basis of a simple legal transplant. They are freestanding from the Convention, and on that basis best thought of as entirely “new domestic rights” (as Lord Hoffman described them in Re McKerr [2004] UKHL 12). The aim was not to just make the rights contained in the ECHR enforceable in U.K. courts, in other words; it was to create an ‘indigenous’ human rights jurisprudence that is in many important respects quite separate to the jurisprudence of the European Court of Human Rights (ECtHR) in Strasbourg.
Why is making this point, which may seem somewhat arcane, important? It is to emphasise that the HRA has to be understood as a primarily internal phenomenon. It did not provide a means by which the ECtHR could dictate legal arrangements in the U.K. It rather provided a means by which the U.K.’s judiciary could dictate political and social arrangements within the jurisdiction. They would, of course, do this through “taking account” of the jurisprudence of the Strasbourg court (they are required to do this by s. 2 (1) of the Act). But “taking account” of something is not the same thing as being bound by it, and U.K. judges have ever since the HRA’s enactment understood that their role as rather to develop a distinctive and independent body of precedent which is best described as ‘U.K. human rights law’.
The ECtHR’s jurisprudence, they therefore say, is not to be treated as a “straitjacket” (Lord Hope in Re P (A Child) (Adoption: Unmarried Couples) [2008] UKHL 38); that would be “inappropriate” (Lord Neuberger in Manchester City Council v Pinnock [2010] UKSC 45); and in any case there will be many occasions in which U.K. courts will indeed wish to “go further” than the court in Strasbourg (Lord Neuberger again, in Moohan, Petitioner [2014] UKSC 67). The idea is not, to repeat, to merely make the ECHR enforceable in U.K. courts and to make U.K. courts follow decisions of the ECtHR. It is to give licence to U.K. judges (in the words of the Court of Appeal in Aston Cantlow v Wallbank [2001] EWCA Civ 713) to “draw out the broad principles which animate the Convention” and apply them in our law. This is code, I think it will be obvious, for U.K. judges deciding for themselves what the ECHR really means when applied to any given set of facts, based on their own reading of what “the principles which animate the Convention” really are.
A rule of thumb: as soon as you give judges the green light to think of themselves as giving effect to “principle”, you will find yourself no longer to be in the world of the application of legal rules and to have slipped into an altogether different reality – judicial policy-making. A court which is holding itself to be giving effect to “principles” is one that does not particularly feel itself to be bound by either precedent or even the clear wording of legislation. Instead, it is free to more or less decide whatever it wants as long as it has a plausible basis for attributing its decision to “principle”.
Every critic of the direction in which U.K. human rights jurisprudence has gone has a favourite example of this phenomenon in action, but mine is R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 (Tigere).
Ms. Tigere was a national of Zambia, born in 1995, who arrived legally in the U.K. in 2001 with her parents but who then (with her mother) stayed on illegally after her visa had expired in 2003. She remained in the country until at least 2015 (I assume she is here still), going through school and eventually getting to the position of being able to apply for a place at university. She also, like almost everybody in her position, applied for a student loan from Student Finance England – the trading name of the Student Loans Company, the state-funded finance company for students in England. And this is where the story really begins: on making her application for a loan, she discovered that she was not in fact eligible for one.
This was because – unbeknownst to her – her mother “had taken no steps to regularise [her] immigration status” when her visa had expired in 2003. She therefore fell foul of two requirements to get a student loan: having been lawfully ordinarily resident in the U.K. for the three years before applying (the “residency requirement”) and being “settled in the UK” (the “settlement requirement”). She did not meet the settlement requirement because this was taken to mean being a U.K. national or having been granted Indefinite Leave to Remain. And she did not meet the residency requirement because she had not been lawfully ordinarily resident in the U.K. for the three years before applying.
One obviously feels sorry for Ms. Tigere, who could perfectly justifiably complain that nothing about her status was her own doing. But it is important to make one thing clear out of the gate: it was neither the case that she would be deported, nor that she would ultimately be denied the opportunity to attend university. She and her mother had been granted Discretionary Leave to Remain in 2012 after having been granted temporary leave in 2010, and this was extended in 2015 to last until 2018, at which point she would have been eligible to apply (and would without doubt have been granted) Indefinite Leave to Remain. At this point she would have met both the residency and settlement requirements to get a student loan and would, at the age of 23, have been able to go to university as a (not very old) mature student. Slightly disingenuously, this fact appears only towards the very end of the judgment of Lady Hale, who gave the lead judgment, and who (spoiler alert) found in Ms. Tigere’s favour; one gets the impression from the opening pages that Ms. Tigere was being denied the opportunity to attend university forever. This was not so.
But, in any event, Ms. Tigere duly brought a claim against the Secretary of State for Business, Innovation and Skills, who was responsible for having made the relevant regulations about applying for student loans. To simplify, the argument was that the residency requirement and settlement requirement were discriminatory restrictions on the right to education, and therefore violations of Ms Tigere’s rights under article 14 of the ECHR (non-discrimination) and article 2 of Additional Protocol 1 to the ECHR (the right to education). The crux of the matter is easily stated: the right to education does not mean that everybody is entitled to ‘an education’ as such, but that they are not to be denied access where educational institutions exist. And in particular they are not to be denied access in a discriminatory way. Since immigration status has long been held to be a ground on which somebody might be unlawfully discriminated against (we’ll leave that can of worms for another day), Ms. Tigere’s claim was that she was being denied access to higher education on the discriminatory basis that she was not lawfully resident or settled, and therefore could not apply for a loan which would fund her studies.
The majority found in her favour. And its decision was reached in an illuminating way, in that it was essentially entirely founded in policy. Citing the ECHR’s decision in Ponomaryov v Bulgaria (2011) approvingly, Lady Hale noted that education “is a very particular type of public service” which “serves broader societal functions”. It plays a “fundamental role” in a democratic society and is itself “indispensable to the furtherance of human rights”. And while the court had to “treat the judgments of the Secretary of State, as primary decision-maker, with appropriate respect”, as the matter concerned “the distribution of finite resources at some cost to the taxpayer”, there was “no evidence that the Secretary of State addressed his mind to the educational rights of [people, like Ms. Tigere, who were unwittingly unlawfully resident and thus ineligible for student loans, thought to be about 2,400 in number at the time] when making [the relevant] regulations”.
With that framing, Lady Hale then applied what she called the “test for justification” to decide whether discrimination against Ms. Tigere through the residency requirement and settlement requirement was justified. Basically, unless a right is absolute, it is ‘qualified’, which U.K. courts have decided means that it can be restricted if the measure in question: (i) has a legitimate aim; (ii) has a rational connection to that aim; (iii) was the least intrusive measure available; and (iv) strikes a fair balance between the rights of the individual and the interests of the community. (This is what English lawyers mean by “proportionality” in the context of human rights, following a line of cases beginning with Huang v Secretary of State for the Home Department [2007] UKHL 11, and ending with Bank Mellat v HM Treasury (No 2) [2013] UKSC 39).)
In Lady Hale’s view, the first step in the test for justification was satisfied by both the settlement and residency requirements: it made sense for the Secretary of State to only want student loans to be made available to people who would be likely to remain in the U.K. after graduating and make a “significant economic contribution”. It was therefore legitimate to “target resources” to students who had some sort of long-term connection to the country. But the settlement requirement was not rationally connected to that aim; Ms. Tigere and people in her position were “just as likely to stay” in Lady Hale’s view and contribute to the economy (and repay their loans) as people who were properly settled. Moreover, Ms. Tigere was “just as closely connected with and integrated into U.K. society as her settled peers”. All of the incentives – including the fact that “graduate wages in the U.K. labour market are large”, would point towards Ms. Tigere remaining in the country long-term if she was able to get a student loan and go to university.
And setting all that aside, the settlement requirement was a “bright-line” or “blanket” rule that did not allow for the application of discretion where needed. It was a “good rule of thumb” for identifying eligibility for student loans, but it operated harshly against people in Ms. Tigere’s position. It therefore was not the “least intrusive” measure available. It would have been less intrusive to create discretion for exceptional cases, and this would not be “administratively impracticable”. And, finally, regarding the fourth step, a fair balance was not being struck between the rights of Ms. Tigere and people in her position and those of the community. The impact of a delay in starting university until the age of, effectively, 23, was “very severe”, and it would, if applied in the round to people in Ms. Tigere’s position, result in a delay to such people entering the graduate workforce and delivering the associated benefits to the economy. For all of these reasons, the settlement requirement was not justifiable, and was incompatible with Ms Tigere’s rights (although, cursorily, Lady Hale concluded that the residency requirement was compatible). The result was that a declaration was granted to the effect that she was entitled to a student loan and that the Secretary of State had to go away and come up with a “more carefully tailored criterion” that would create space to exercise the necessary discretion in exceptional cases.
This is not, as I hope you will immediately see, the application of legal rules to resolve a dispute. The rules in this instance were perfectly clear (and indeed the case should really never have been litigated in the first place); nothing about the settlement or residency requirements was ambiguous. And they had been created in the proper way by a Government Minister acting intra vires, responsible to Parliament, and ultimately accountable thereby to the electorate. Lady Hale’s judgment (she spoke for Lord Kerr, and Lord Hughes applied similar reasoning) is, if anything, to be understood as, instead, the application of policy. Higher education, she made clear, was in her view a good thing – good for democracy, but also good for the economy. And it was therefore, presumptively, good policy to try to get as many people into university as possible if they had the ability – even if they did not have the required settlement status. Never mind that a Government Minister, accountable to Parliament and acting on the basis of powers granted by legislation enacted by Parliament, thought otherwise and had good reason for it (chiefly to do with having an efficient approvals process that would achieve value for money, which would clearly be impossible if Student Finance England had to vet 1.5 million applications a year to check whether they were “exceptional cases”). He had failed to “address his mind” to the right issues. The rational way to behave would have been to require Student Finance England to exercise discretion in exceptional cases and allow people like Ms. Tigere to get student loans – it was, in the end, as simple as that.
Lord Sumption and Lord Reed gave an interesting and cogent joint dissenting judgment in Tigere, which it is worth reading in its entirety. But it is summarised nicely in its closing paragraph:
In a case where a range of rational and proportionate policy options is open to the decision-maker, the decision which provides the best allocation of scarce resources is a question of social and economy evaluation. These are matters of political and administrative judgment, which the law leaves to those who are answerable to Parliament. They are not questions for a court of law.
The HRA, though, and the way that it has been interpreted by the judicary, provides precisely the means through which to transform those questions into what are indeed those for a court of law. The important point, of course, is that this does not make them any less matters of “political and administrative judgment”. Where to draw the line between people who are eligible for student loans and people who are not, and whether the application should be hard and fast in all cases or subject to discretion, are obviously political decisions. Tigere, in transplanting those decisions into the minds of the judges in the Supreme Court, did not render them apolitical; it rather politicised a judicial process or, if you prefer, judicialised a political one. That is, indeed, what the HRA is really for; and that is the dream of liberal legalism in action – evident almost whenever the courts these days issue a ruling that concerns any of the Convention rights.
The public should be outraged about this sort of thing. In the end, it doesn’t really matter in the grand scheme of things whether Ms. Tigere got to go to university in 2015 or 2018, or whether the 2,400 other people in her position got to go to university either. What matters is that it is not the job of people like Lady Hale, Lord Kerr, or, for that matter, Lord Sumption, to make the decision. This is not merely because they are inadequately informed (the reasoning on the value of higher education on display in the judgments in Tigere is almost embarrassingly inept), but because they are not accountable to the electorate. Ordinary people, though, rely on journalists, politicians, lawyers and academics to make them aware of what is happening and explain it in layperson’s terms, and this self-evidently is not really happening.
More importantly, conservative politicians – who don’t have the same excuse – should be outraged too, and should be thinking carefully and strategically how they go about remedying the problem. Bleating about “the Strasbourg court” and fighting tactical battles over things like votes for prisoners or the Rwanda scheme is not the approach to take; the task has to be handled with seriousness and with an eye on the long term. (It also has to take account of the perfectly reasonable concerns of people in Northern Ireland, just as much citizens of the U.K. as the rest of us, for whom the HRA has additional constitutional significance, being entwined with the Good Friday peace agreement.) Emblematic of failure in this regard was the absurd defenestration of Dominic Raab and the abandonment of his, in many respects sensible, proposals for reform subsequently. But, to come back to our initial starting point, this is really the rub: whether one likes or loathes what New Labour achieved, the fact of the matter is that it contained very intelligent and capable people who knew what they wanted to do, spent a long time thinking deeply about it and had their minds set on carrying it out. That kind of politician seems very thin on the ground these days – an observation that is as regrettable as it is trite.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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Lucky the public sector is amazingly productive and these pensions are so well earned.
I was thinking it is good they retire so soon in order to limit their damage.
Then the only damage they do is financial…
Public sector pensions are no different to state pensions in that they have always been unfunded. Successive governments have continued to kick this can down the road hence the mess we are now in. It is inconceivable that the Prime Ministers of the last twenty odd years or so have not been aware of this looming disaster so the question is why go so public on this now? It’s enough to make a conspiracy realist believe that the grand sale of UK PLC is not far off and we are simply being prepared for it.
Yes, all forms of state pension are Ponzi schemes.
Theywere bad enough when the working age population greatly exceeded the retired population but with baby boomers now retired there are nowhere near enough earners to fund state pensions. The triple lock was a disgusting and cynical electoral ruse but any politician principled enough to abolish it will suffer the electoral wrath of the baby boomers.
I’m sure all politicians have been aware but continued to kick the can because it suited all sides.
I’d suggest 2 things have/are changing though,
1. It’s becoming harder to kick the can. In some areas more than 20% of council tax goes on pensions and it’s only going to get worse.
2. We’re facing a change in government so why not draw attention to it to force them to deal with it (and take the political hit) rather than allow the status quo to continue
Actually, I forgot to state the obvious – no Prime Minister and certainly not MP’s are going to push for the reigning in of State pensions when for most of them it’s the reason they sought election in the first place
Exactly, Politicians do things to promote themselves and to stay elected regardless of cost. Comfortable in the knowledge in that what they started will be paid for by someone else, and that someone else will carry the can for their decisions. Consider for a moment, the source of most of the problems of today, and the origins.
The scale of public sector pension liabilities is another illustration of the importance of economic growth. Annual average economic growth in excess of 2% is essential and eminently achievable if the right policies are adopted.
Liz Truss grasped this but lacked the political skills to implement a pro-growth agenda. Her successor pursues anti-growth policies as did her predecessors back to Blair.
The size and scope of the state need to be reduced radically with cuts in state spending, taxation, and regulation. Cheap and reliable energy is also essential along with incentives to save and invest rather than borrow and spend.
The state is far too large, far too powerful and headcount must be cut (either figuratively, or literally – I’m open to persuasion). Let these parasites find a real job in the real world where people (mostly) progress by competence rather than long-service.
Also, growth isn’t simply a case of ramping up GDP as most of our so-called leaders appear to believe. If GDP per-capita is falling (as it is currently) then we have a mirage.
Fixing the latter is far harder than pretending to fix the former, especially when inflation is eroding the value of money.
“Our” public services.
LOL
The country is divided into two: the private sector, mostly small businesses who pay the taxes; and the public sector administrative state that lives off it. They dictate the rules that maintain their supremacy over the entrepreneurs,and will never willingly yield this power.
The private sector now works up to half a year to pay for it. Time for change.
The blob is parasitic and ‘progressively’ killing the host. There is no symbiosis.
No doubt that this is a preliminary to discussion of assisted dying, completely voluntary of course. Has its appeal but I would avoid it given the ghouls that we have in charge. I heard an estimate that human productivity globally is less than one percent of what it could be if we didn’t have the parasite on our back. There would easily be enough abundance to care for the old in their dotage. Tha parasite sucks more and more and gets you used to it gradually so that they normalize the unthinkable and make you forget that you ever thought otherwise.
Ideally they don’t need to be cared for because they’ve set enough aside to take care of themselves.
Yes that would be far better. But the reality is very different. I read something recently that said that the average Brit doesn’t even have a few hundred pounds put away for a low level emergency like buying a new washing machine for example.
The Labour Party is campaigning on the basis of it ‘has a plan to get your future back’. They don’t have a plan and even if they did it would be doomed to fail. This time that we are moving into has nothing to do with getting your future back, quite the contrary. It will be a time when you will have no familiar foundations, no retrospective glories to appeal to. Essentially as new and alien as stepping onto another planet. In terms of politics you will already see that. The important thing is that the people see that there is no restoration or renewal of the old. What comes next hasn’t been forged yet but it has nothing to do with those power structures. They know that they are dying and so they engage in last gasps attempts. Where we go from here is going to look entirely different to anything that went before.
We talk about how difficult it is to financialize care work. Perhaps we shouldn’t be financializing. Like the editor of the FT said, financialisation is like a species of parasitic wasp which lays its eggs in the body of a host and then takes it over and destroys it. Anyone with any nous can see the doleful future that awaits if financialization isn’t recognised. I don’t even like saying it because it behoves a people to understand it.
There is a real battle up ahead and I don’t know if this is a conscious avoidance mechanism or genuine naivete. Just be are of the situation.
There is a lot of confusion here. Describing the pension liability as a “bill” is incredibly misleading. The best way of thinking of it is how much the government would have to pay a bank to take responsibility for meeting pension commitments under current arrangements. These commitments stretch many decades into the future so it is not as though the government has to pay them now or even in the short term. Comparing it to GDP is comparing capital liability with a single year’s income. It is dramatic but fundamentally irrelevant.
It is also worth noting:
I should add:
I have never worked for the public sector and therefore my pension is private sector.
I do think we will have to reduce government pension payouts .
I don’t suppose it helped when Labour’s Gordon Brown and the Cons George Osborne raided the pension pots.
Not to mention some private sector company ‘raiders’ like the Mirror Group and Marconi – these stole millions from many thousands of people just to prop up share prices.
We’ll get rid of the Conservative Party this election but unfortunately it’ll be 5 years of depression until we get rid of Labour. New beginning in 2029. But will it all be too late. God help us
In the absence of any government savings on the behalf of the public sector employees who ‘contributed’ to their pensions all their working lives; these pensions can’t even be ‘cashed out’. They depend on tax income from those currently in employment.
The UK Government is therefore running a Ponzi scheme.
China, Russia, Norway, Saudi Arabia all have sovereign wealth funds to invest on behalf of their citizens.
Montenegro also has a sovereign wealth fund.
And the Tories have increased the size of thePublic sector over that of Labour (no fan of either being politically marooned).Whilst we in the Private sector had our pensions ruinedand plundered by Tony Blair and Gordon Brown, and the Tories continue the theft, the parasitic politicians and the civil servants, DEI workers in public sector get to continue the leeching whilst they work from home and produce NOTHING which grows the economy.
And they wonder why people have lost all faith in so called “democracy”