'Activist lawyers'

[discovolante]

Apparently Activist Lawyers are preventing the Home Office from doing their noble work of booting people out of the country:

https://twitter.com/ukhomeoffice/status ... 27872?s=20

Nothing to see here apart from since getting their enormous majority the government now need to find another arm of the separation of powers to blame for every ill in the world.

[nekomatic]

That means ‘lawyers who don’t agree with us’, doesn’t it?

[discovolante]

That means ‘lawyers who don’t agree with us’, doesn’t it?

Well, I'd imagine that most lawyers who spend their careers challenging Home Office decisions probably have fairly strong views about the Home Office (apart from the sharks, immigration law seems to be particularly vulnerable to that type of lawyer), but really their opinions aren't anything to do with it. Any situation that isn't resolved can end up in front of a court and it's out of their hands, that's the point. And it's not a given that they'd hold those opinions anyway, plenty of lawyers 'swap sides' throughout the course of their career.

I have to be honest, I was a bit unsettled when I watched that video last night. I realise that's a bit pathetic seeing as the video is literally about forcing people onto flights back to the countries they are trying to escape from - just to explain that the reason I didn't focus on that in this thread is because there is a recent thread about refuge/migration and I'd be more than happy for discussion about what the HO is doing to continue there. But anyway that aside, to have something like that come from an actual government department rather than just some useless government minister trying to cover their own back when they don't get their own way put me on edge a bit. I don't work in immigration but I challenge 'the state' in my job (OK local authorities, rock and roll) - it's not exactly riveting or glamorous - and the HO is effectively presenting people who do that kind of stuff as enemies of the state, rather than just representatives of the people whose lives and future it makes decisions about, which is worrying. Sorry for being so ridiculously fragile

[JQH]

... But anyway that aside, to have something like that come from an actual government department rather than just some useless government minister trying to cover their own back when they don't get their own way put me on edge a bit. I don't work in immigration but I challenge 'the state' in my job (OK local authorities, rock and roll) - it's not exactly riveting or glamorous - and the HO is effectively presenting people who do that kind of stuff as enemies of the state, rather than just representatives of the people whose lives and future it makes decisions about, which is worrying. Sorry for being so ridiculously fragile

You are not being fragile, you have put your finger on the exact reason this propaganda is so dangerous; we have a Government that is actively undermining the rule of law.

[nekomatic]

Indeed, it’s outrageous and I didn’t mean to minimise that with a flippant comment, sorry.

At least the Twitter replies are running pretty strongly against the original tweet.

[discovolante]

Indeed, it’s outrageous and I didn’t mean to minimise that with a flippant comment, sorry.

At least the Twitter replies are running pretty strongly against the original tweet.

You don't need to apologise.

Yeah it's good to see a lot of people have picked up on it, although I don't somehow see this leading to a sudden significant shift in approach!

[discovolante]

A bit more substantive, on something related to the HO video: a video explainer/opinion by David Allen Green on the government consultation to reform Judicial Review (with a transcript if you don't want to sit through a video):

https://www.ft.com/video/1b556897-c5a9- ... 3b91e65f7d

[discovolante]

Press release from the Law Society: https://www.lawsociety.org.uk/contact-o ... 0dangerous.

A Home Office video referring to immigration lawyers who provide legal advice to migrants as ‘activist lawyers’ is condemned by the Law Society of England and Wales.

"Attacks on the integrity of the legal profession undermine the rule of law,” said Law Society president Simon Davis.

“Solicitors advise their clients on their rights under the laws created by parliament. To describe lawyers who are upholding the law as ‘activist lawyers’ is misleading and dangerous.

“We should be proud that we live in a country where legal rights cannot be overridden without due process, and we should be proud that we have legal professionals who serve the rule of law.

“It is vital in a democratic society that each case is judged on merit and it is the role of the justice system to determine the validity of claims. This function is and must remain independent of government, media and public opinion.

"In countries where lawyers are unable to do their job for fear of intimidation the rule of law is weakened. The consequences are a society that becomes less safe, less stable and less fair.

“Britain's standing internationally is underpinned by our reputation for democracy, fair play and the independence of our legal system.

“This independence hinges on lawyers and judges not being hindered or intimidated in carrying out their professional duties and not being identified with their clients or their clients' causes.”

[discovolante]

'Home Office scraps 'activist migrant lawyers' clip':

https://www.bbc.co.uk/news/uk-politics- ... z4FUDNulPc

Hmmmmm

[Cardinal Fang]

Of course they have.

They knew it wouldn't stay up very long, and that lawyers and barristers would complain.

They're playing to their base - the same ones that were okay with the "Enemies of the People" headline in the Daily Heil a couple years ago.

Lawyers (ie out of touch elitist etablishment types), getting angry just reinforces it for the sort of people they're pandering to.

They go "oops we'll never do it again" whilst enjoying the boost from the same ones who were applauding a week or who ago about a 16 year old Sudanese refugee drowning.

CF

[kerrya1]

What is so wrong with activist lawyers anyway? If they see an injustice and use their professional skills to attempt to challenge it then why is that a problem? If they are wrong then surely they will lose their cases and precedent will be set - I could be all wrong about this IANAL.

[jimbob]

What is so wrong with activist lawyers anyway? If they see an injustice and use their professional skills to attempt to challenge it then why is that a problem? If they are wrong then surely they will lose their cases and precedent will be set - I could be all wrong about this IANAL.

Now you are using reasoned argument to defend lawyers ensuring that justice is done and the rule of law obeyed. Can't you see why Johnson would hate that?

[discovolante]

What is so wrong with activist lawyers anyway? If they see an injustice and use their professional skills to attempt to challenge it then why is that a problem? If they are wrong then surely they will lose their cases and precedent will be set - I could be all wrong about this IANAL.

In theory you could challenge a HO decision and in the meantime prevent the person from being removed from the country. Again I don't have experience in immigration law but from a housing perspective - you could apply for permission to appeal a decision to evict someone even if the case is not very strong, ask the court to order that they should not be evicted until the appeal process is over, and in the meantime the case will drag on for a good few months which would buy that person them more time (for whatever reason they needed that time for). Part of the delay will be due to the court system being too overloaded to deal with cases efficiently and court hearings taking months to go ahead.

I've written that in fairly cynical terms but another way to look at it is the balance of harm: if someone says their life is at risk and you think they might have an arguable case but aren't that sure they will be successful, what should you do? The impact of the decision being challenged is a factor that's considered when it's decided whether legal aid should be granted by the way, so that's not just a hypothetical question.

The HO perspective is presumably that lawyers with no ethical standards (you wouldn't/shouldn't run a case you knew was absolutely hopeless, dishonest or whatever) persistently and deliberately lodge pointless appeals just to drag things out (and make money), rather than because of any possibility that the HO decision might be wrong.

[Millennie Al]

What is so wrong with activist lawyers anyway? If they see an injustice and use their professional skills to attempt to challenge it then why is that a problem? If they are wrong then surely they will lose their cases and precedent will be set - I could be all wrong about this IANAL.

In theory you could challenge a HO decision and in the meantime prevent the person from being removed from the country. Again I don't have experience in immigration law but from a housing perspective - you could apply for permission to appeal a decision to evict someone even if the case is not very strong, ask the court to order that they should not be evicted until the appeal process is over, and in the meantime the case will drag on for a good few months which would buy that person them more time (for whatever reason they needed that time for). Part of the delay will be due to the court system being too overloaded to deal with cases efficiently and court hearings taking months to go ahead.

That might apply in cases such as landlord and tenant disputes, but not where one of the parties is part of the state itself. If the government of the day feels that it is being blocked by challenges in the courts, it has the power to provide extra resources to the courts to speed up decisions. Furthermore, it has no legitimate cause for complaint when decisions go against it as it is not just a party to the dispute - it makes up the rules which are being disputed, so cannot complain about the rules.

[discovolante]

That might apply in cases such as landlord and tenant disputes, but not where one of the parties is part of the state itself. If the government of the day feels that it is being blocked by challenges in the courts, it has the power to provide extra resources to the courts to speed up decisions.

Of course the government has the power to properly fund the justice system so that it works efficiently, but it doesn't and there is a large backlog of cases in many courts. This is a result of (among other things) the selling off of the court estate and a poorly funded civil service and judiciary. If you're arguing that the HO has no right to complain about long waits for hearings (disregarding the necessary time for preparation/compliance with court directions) then I'd agree.

(Landlord and tenant disputes including disputes with local authority landlords by the way, although LAs have no control over the mechanics of the justice system).

Furthermore, it has no legitimate cause for complaint when decisions go against it as it is not just a party to the dispute - it makes up the rules which are being disputed, so cannot complain about the rules.

Well, a lot of asylum rules are matters of international law. Aside from that, most disputes are either going to be about interpretations of the rules (what does 'likely' mean for example), or disputes of the facts (e.g. is this person who claims to be gay and therefore can't return to their institutionally homophobic home country actually gay?). You will get challenges that a piece of legislation isn't compatible with the ECHR or maybe that a statutory instrument is ultra vires, but I'm not sure how often that happens in immigration cases.

[Woodchopper]

It seems to me that they have imported and adapted a concept from the US. There the right complains about 'Activist Judges'. The accusation is that judges have made rulings which go way beyond what was intended by the writers of the constitution or the original authors of subsequent legislation. An example would be roe versus wade, in which the Supreme Court legalized abortion absent legislation passed by congress.

I'm assuming that this time in the UK they've decided not to attack judges directly. Instead, it seems to me that 'activist lawyers' is a way to attack the legal system and insinuate that lawyers are able to ensure that the law is implemented in ways that were not intended by Parliament or the government when legislation and subsequent regulations were drafted. Its a way to suggest that over the past decade the government has acted correctly, and that someone else is responsible for the current 'crisis'. They'll probably assume that the public will buy it as on TV its common to see examples of lawyers who creatively use legal technicalities to ensure that billionaires pay no tax, or that mafia dons go free etc.

[nekomatic]

on TV its common to see examples of lawyers who creatively use legal technicalities to ensure that billionaires pay no tax, or that mafia…

Activist Lawyer: (bangs table) Objection! OBJECTION!

Judge: (bangs gavel) SILENCE IN COURT!

[Lew Dolby]

IANAL but AIUI, in England and Wales the courts cannot consider what parliament's intentions were in making a law. They can only consider what the actual law actually says.

[Maybe someone will correct me if I've got that wrong]

[Woodchopper]

IANAL but AIUI, in England and Wales the courts cannot consider what parliament's intentions were in making a law. They can only consider what the actual law actually says.

[Maybe someone will correct me if I've got that wrong]

That was the case, but courts can now consider the content of parliamentary debates etc if legislation is ambiguous, obscure, or might create an absurd situation. See here: https://www.iclr.co.uk/blog/reviews/rev ... on-online/

Though at the risk of sounding like a rightist, that could be seen as an example of the judiciary unilaterally altering its relationship with parliament.

[discovolante]

IANAL but AIUI, in England and Wales the courts cannot consider what parliament's intentions were in making a law. They can only consider what the actual law actually says.

[Maybe someone will correct me if I've got that wrong]

Well this is interesting because there are sort of two answers to that.

The way I'm explaining this is a bit law-schooly but hopefully it is accurate enough...it's acceptable to consider what effect Parliament might have been trying to achieve when drafting legislation, but that stops short of changing what the legislation actually says if it seems like the drafting has given rise to a situation Parliament can't have intended.

So for example - this probably isn't the best example unfortunately but it just happens to be one I came across very recently and I can't be bothered to think up anything else take the case of Tower Hamlets v Begum, in the Court of Appeal in 2005. The question was, broadly speaking, about whether Local Authorities should accept 'repeated' homeless applications from the same person, or whether they could reject further applications out of hand if the person just kept coming back and back with the same issue after being rejected. Part of the question revolved around what sort of threshold there is for the person making the application to establish that their circumstances had changed since the last application. In the end (and don't quote me on this because it's a broad paraphrase just to illustrate the point rather than a completely accurate summary of the law...) the court decided that LAs had to accept new applications whenever the circumstances had changed as long as the new facts given weren't 'trivial' or 'fanciful'.

One of the things they said was:

I consider that there is no room to imply a further requirement which has to be satisfied, such as establishing a material change of circumstances since the refusal of an offer of accommodation pursuant to an earlier application...A person seeking to imply words into a Statute faces a difficult task: it is a course which can only be justified in clear and unusual circumstances. Where the implication involves imposing a further requirement, over and above express requirements imposed by the legislature, the task is, in my view, particularly difficult.

...

However, it seems likely that, at least in the great majority of cases involving successive applications, the time will come, often fairly soon, when one of the subsequent applications will be based on precisely the same facts as its immediate predecessor application, and will accordingly be treated as of no effect. Further, while clearly significant, the burden imposed on housing authorities by the prospect of successive applications can be exaggerated; on a subsequent investigation, they will often be able to rely, in many respects, on the results of their investigations on the earlier application. In any event, it should not cause particular surprise if the legislature has adopted a relatively indulgent attitude to people whom Part VII of the 1996 Act [homelessness law] is designed to protect, namely, the homeless.

So as above you can see in the first para quoted the court is refusing to add to what has been legislated for already, and in the second is also putting this into context i.e. this is legislation is supposedly designed to protect people so it is reasonable to interpret in a way that achieves that goal (so, looking at Parliament's intention).

Very long winded first answer there, sorry!

The second answer is whether the court can actually go back and look at Hansard itself, which might have been what you are thinking about in the first place. This is what Pepper v Hart was about. Essentially the decision was that you can't look at Hansard unless the legislation is 'ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.' And: 'In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.'

ETA I see Woodchopper has beaten me to it. Well I'm posting this anyway

[Woodchopper]

Your answer was much better Disco. Anyway, the ‘activist lawyers’ argument doesn’t need to be legally correct. It’ll be viewed as a success so long as it gets lots of shares on Facebook

[discovolante]

Your answer was much better Disco. Anyway, the ‘activist lawyers’ argument doesn’t need to be legally correct. It’ll be viewed as a success so long as it gets lots of shares on Facebook

I'm always ready to use 1000 words where 10 will do

But yes you're right and that's the crux of it and everything this government is doing. I think the US aspect is convenient but they would have done it anyway. They have been doing it for years - see legal aid cuts - and basically want to attack any system that challenges their ability to do whatever the hell they like. Which is possibly interesting...Trump is obsessed with 'fake news' but politicians here seem to stop short of outright attacking journalists/the press directly, when it doesn't agree with them. That's something I suppose.

[discovolante]

They're at it again!

https://twitter.com/ukhomeoffice/status ... 46754?s=20

[Woodchopper]

They're at it again!

https://twitter.com/ukhomeoffice/status ... 46754?s=20

Going for the retweets today.

[discovolante]

They're at it again!

https://twitter.com/ukhomeoffice/status ... 46754?s=20

Going for the retweets today.

And getting plenty.