Friday, July 12, 2019

15 facts that prove the Tory immigration system isn’t fit for purpose

I regularly advise the Labour Party's front bench on immigration law and policy issues, including on questions to put to government. During this Parliament, these enquiries have made a number of surprising findings. I've put the top 15 in a brief piece here.

Theresa May's poison chalice - for whoever succeeds her

 I wrote a piece on the Tory leadership contest shortly after it started, but did not publish at the time. Thought it might be fun to see how predictions actually did play out since....

Theresa May stepped down as leader of the Conservative Party last Friday after attending D-Day commemorations and receiving US President Donald Trump for a state visit. May will remain as Prime Minister until a new leader of the Conservatives is named.
The process is usually straightforward. Any Conservative MP needs only a couple supporters to get his or her candidacy considered. Tory MPs then vote for their preferred candidate with the name receiving the least votes being eliminated in each round until there are two names left. The final names are then presented to Conservative Party members for a vote. The winner becomes leader of the party – and the next British Prime Minister.
Last time, the process was only partly used. This is because a number of candidates either decided against standing for leader, like Boris Johnson, or dropped out during the contest, like Andrea Leadsom. Now the process has been changed while candidates have been making their pitches to supporters, such as raising the number of required supporters. This was justified to help shrink the field but the only effect has been to remove more pro-Remain and soft Brexit voices from consideration that will make some think the move was partisan-driven.
There are a large number of MPs in the running. The frontrunner is Boris Johnson – and never before in modern times has the Tory frontrunner won the contest. Johnson may win regardless of history being against him. It’s important to understand why. After speaking to a number of Tory activists and MPs, it has been surprising to see that their support is not for Boris but a wager that he’ll win and if so their support might win them a place in his team. This is not about backing the best candidate or vision, but a collective act of self-promotion – and for some self-preservation. Hardly an inspiring position to be in.
His main rivals appear to be Jeremy Hunt, who replaced Boris as Foreign Secretary, and Dominic Raab, who was temporarily Brexit Secretary. Hunt is the Tory mainstream candidate who has continuously served in Cabinet since David Cameron was Prime Minister. He is also the softest on Brexit. Raab, who achieved virtually nothing in his brief time in Cabinet, has courted controversy by declaring he’d effectively suspend Parliament from meeting until after 31 October to ensure Brexit happened deal or no deal.

Both are unlikely to succeed. Hunt was an unpopular Health Secretary and has flip flopped over what kind of Brexit, if any, he would support. He has been in favour of May’s current deal rejected by Parliament several times. Raab has also not been consistent on Brexit and his aim to stop Parliament from meeting – while MPs continue to receive full pay – for months so that Brexit can happen one way or another appears an overly reckless and partisan approach to the general public.

The remaining candidates have struggled to get attention or command support from their fellow MPs. Andrea Leadsom has been consistent on Brexit and was the last rival to May in the previous contest, but she has failed to garner more than a handful of supporters. Esther McVey’s push for a No Deal Brexit has been seen as extreme and economically damaging.

Most curious of them all is Home Secretary Sajid Javid, who holds May’s previous Cabinet position. He has publicly called for big increases in police and a softer approach to immigration, including students, that directly contradict the Prime Minister and, until now, Javid’s own repeated claims to the contrary.

Overall, it seems they are all – from Johnson to Javid – united in the view that there must be Brexit. But they no longer argue Brexit is best for the country, but rather necessary for the continuing survival of their political party. Their collective problem is that the public did not vote for Brexit by any means or at any costs. The public were promised that Britain would be better off and the benefits would extend to every region of the UK. Getting to Brexit only addresses the most pressing crisis facing the Tories, but does not make their problems go away.

However, the bigger political question might be not who might become Prime Minister, but what difference will this make to Brexit? All candidates have rejected calling a general election yet each thinks only he or she can make a difference in making Brexit a reality. But without a new election, the Tories are still without a majority in Parliament and so none of the tax cuts, Brexit plans, etc they cannot pass now will succeed in future. Only the Prime Minister is changing and not who the MPs are. A general election creating a new Parliament and potentially different numbers of MPs across the major parties seem the only way to break the current deadlock without a second referendum.

A further political question is whether whoever becomes the next Prime Minister will complete his or her first day in office. This is because it is almost certain a vote of no confidence will be held in the leader that could force a general election. At the moment, only the Tories look likely to get stung if an election took place. Since they do not control a majority in the House of Commons, this makes it all the more certain such a vote could succeed – and the balance of power shift fast under the gaze of whoever succeeds May in the next days.

Thom Brooks is Dean of Durham Law School @thom_brooks

Thursday, April 18, 2019

Fulbright Scholar Award -- opportunities at Durham Law School (UK)

Fulbright Scholar Award (USA – UK and UK - USA):  
Applications are now invited from academics in the USA to apply for the Fulbright Scholar award.  Monthly stipends are offered to cover living costs. The reciprocal programme for UK academics to lecture and/or research in the USA opens in August ’19 for 2020-21 onwards. More information can be found here. 
Readers should contact me if interested in spending time at Durham Law School. As the Dean, it would be a pleasure to host!

Tuesday, April 16, 2019

Restorative Justice - we can have more of it, if we expand its options

My submission to the Labour Party's Policy Commission:

Restorative Justice (RJ) is a progressive means to a more effective end. Research shows it leads to up to 25% less reoffending at 1/9th the cost - and with vast improvements in both victim and offender satisfaction in process.

But it's currently primarily used for teen offenders for non-violent crimes. How to get it better embedded and more widely used?

Two keys to unlocking this:

First is RJ requires offenders to admit guilt. They are then free to agree or reject contract at end of meeting. If they fulfil it, they are 'restored' avoiding court, prison and have a clean record. But if they don't do so, the consequences are almost trivial: a new process might start all over again or proceed to court where previous admission of guilt in RJ is inadmissable.

So first recommended change is to say RJ matters and an admission of guilt to victims counts. End inadmissibility of previous guilt confession. Consider further penalities, including suspended sentence for violent offenders who break RJ contract.

Second is RJ options. These include non-punitive measures almost by definition: community sentences, drug and/or alcohol treatment, cognitive behaviour treatment sessions, etc.

It's certainly true that a punitive system is problematic and, as found, can be very counterproductive. Progressives shoudl support a less punitive system.

While clear a punitive-driven approach is mean spirited and counterproductive, it is also clear that no punitive options doesn't enable 'restoration' in every case.

So second recommended change is greater range of options for different kinds of offences (perhaps categorised A, B, C) where in some exceptional cases hard treatment in the form of residential drug and alcohol treatment, etc is on offer.

These more taxing options are justified purely on grounds of restoration where less taxing options ineffectual or likely to be so. They could build confidence that RJ is no 'easy' option - nothing easy about receiving treatment, doing community sentence, etc. - with added teeth of consequences if contract broken.

I note the greater use of RJ - even with more taxing options - will necessarily reduce the punitiveness of the overall system.

I've referred to this different approach in my research as "punitive restoration" only to highlight the more taxing nature.

Friday, April 12, 2019

Capabilities, Freedom and Severe Poverty

Appearing in Thom Brooks (ed.), The Oxford Handbook of Global Justice. Oxford University Press, 2019


Severe poverty is a key challenge for theorists of global justice. Most theorists have approached this issue primarily by developing accounts for understanding which kinds of duties have relevance and how responsibilities for tackling severe poverty might be assigned to agents, whether individuals, nations or states. All such views share a commitment to ending severe poverty as a wrongful deprivation with profoundly negative impact on affected individuals.

While much attention has prioritised identifying reasons for others to provide relief, this chapter will examine the nature of the wrongful deprivation that characterises severe poverty. One influential view is championed by Martha Nussbaum in her distinctive capabilities approach. An individual might be considered to experience severe poverty where she is unable to enjoy the use of her capabilities which should be available to her. But this position raises several questions. Take the fact that about 1 billion people are unable to meet their basic needs today. Would the capabilities approach claim the number is much higher given its wider grasp of human flourishing beyond mere material subsistence – and what implications would flow from this? Or would the capabilities approach claim only a portion of those unable to meet their basic needs are in a wrongful state because their circumstances are a result of free choice – and what would this mean? These questions indicate a potential concern about whether the approach is over- or under-inclusive and why.

This chapter will proceed by first providing a general overview of Nussbaum’s capabilities approach providing an indication about how her list of ten capabilities might be reformulated differently. The next section applies this approach to severe poverty in a critical discussion of how such poverty is best understood within the capabilities framework. The penultimate section considers the importance of freedom and choice that underpins the approach and its implications for how we apply it to severe poverty. The chapter ends with some concluding remarks about the broad limitations for understanding severe poverty as a kind of capabilities deprivation.


Climate Change Ethics and the Problem of End-State Solutions

The Oxford Handbook of Global Justice. Oxford University Press, 2019


How best to response to climate change is one of the most pressing challenges facing us all. There is no uncertainty about whether it is happening, only the likely negative effects beyond the short-term. The need for a compelling analysis of what to do is more than a question of justice, but a matter of human survival. The stakes could not be higher.

Proposed solutions come in one of two approaches. Each takes a different route to addressing the negative effects of climate change. The first is conservationist and seeks to minimise these effects by reducing, if not eliminating, them by bringing climate change to a stop. This can take form of advocating the use of an ecological footprint or implementing a polluter pays principle. The second is focused specifically on adaptation mostly through technological advances to help us endure climate change by minimising its effects on us. Many theorists advocate some use of both approaches in tandem as climate change is happening making necessary some form of adaptation and conservationism together. Yet it is also clear that most give greater weight to either conservation or adaptation as the primary mode of securing climate change justice.

The dilemma for these proposed solutions is in their aim of being a solution to the problems that climate change brings. In short, they mistake the kind of challenge that climate change presents us. This is what I call the problem of “end-state” solutions. It is where we attempt to bring to an end a circumstance that might be influenced positively or otherwise by our activities, but beyond our full control. So to claim a so-called “solution” to such an everchanging problem could make it better or worse without concluding it. If climate change is this kind of problem – and I will claim it is – then end-state “solutions” can be no more than a band aid (or sticking plaster) and the nature of our challenge is different requiring an alternative future strategy. This chapter will set out how the problem of climate change is understood through attempted solutions that do not succeed. It concludes with some ideas about why this matters and the arising implications for how we should think about climate change justice beyond the false prism of end-state solutions.


Introduction to Plato's The Republic

"Introduction" in Thom Brooks (ed.), Plato's The Republic. New Delhi: South Asia Press, 2019.


Plato’s The Republic is the greatest work by one of the greatest philosophers. This short essay is a general introduction to the overall structure presenting the key ideas and themes. The essay is published in a new edition of The Republic (2019).