Week after week, the reports fill the papers. “Migrant avoids deportation because he lost his phone.” “Pakistani paedophile allowed to stay in UK because he is an alcoholic.” “Rapist’s criminal record is so bad he can’t be deported.” “Criminal’s deportation case halted over son’s dislike for chicken nuggets.” “Afghan woman can’t be deported because she has back pain.”
Even allowing for a certain level of journalistic exaggeration, we clearly find it harder than we should to kick out those who shouldn’t be here. So what’s gone wrong?
Well, Robert Jenrick, the shadow justice secretary, thinks much of the blame lies with lawyers like Greg Ó Ceallaigh. Ó Ceallaigh is a crusading KC, who supports the abolition of the Illegal Migration Act, has called Tory politicians “terrible crooks” and tweeted in 2012 that the party “need to be dealt with as you would deal with the Nazis, cancer or lava”. But he also moonlights as a migration judge.
I’m not suggesting Ó Ceallaigh’s judicial verdicts are driven by his politics, though he has certainly contributed to the catalogue above. (“Covid made me commit crime, claims drug dealer spared deportation”.) But it is definitely true that the people who become migration judges tend to be migration lawyers — and that such lawyers generally got into the field to protect migrants’ rights, not borders.
Indeed, asylum and migration is widely accepted to be one of the most left-wing parts of an increasingly left-wing profession. In surveys by The Lawyer, the magazine’s readers voted overwhelmingly for the Lib Dems in 2019, and even more overwhelmingly for Labour in 2024.
But immigration isn’t the only area where the idea of the judiciary as impartial interpreters of the rules set by parliament seems increasingly antiquated. A few months ago, every living lord chief justice co-authored a report on prisons policy, urging more leniency and lamenting the fact that idiot politicians, egged on by the media, kept pushing for tougher sentencing.
Elsewhere, judges have repeatedly blocked oil and gas projects because of the carbon they would generate, despite a long-established precedent that such “indirect emissions” should fall under national climate policy. The nutrient neutrality scandal has seen tens of thousands of houses blocked by a disastrously strict interpretation of habitat regulations. And the government has yet to explain why we are legally obliged to give up the Chagos islands, let alone hand billions to Mauritius for the privilege. Not least since, when we signed up to the International Court of Justice, we explicitly excluded such disputes from its remit, precisely to head off this kind of grift.
In fact, there has been a steady growth not just of judicial activism, but judicial self-regard. When the row over “two-tier justice” broke out, the chairman of the Sentencing Council sent the justice secretary an astonishingly high-handed letter, warning that the judiciary accepted sentencing guidelines only because they were written by the judiciary, and that for “sentencing guidelines of whatever kind … to be dictated in any way by ministers of the Crown” would breach the constitution.
Similarly, when Kemi Badenoch and Sir Keir Starmer agreed it was utterly wrong for a Gazan family to be granted asylum under a scheme reserved for Ukrainians, the lady chief justice said the lack of respect for judicial independence left her “deeply troubled”.
So will the government put the lawyers back in their box? It’s hard to see it. Starmer is, famously, a leftie human rights lawyer. As are many of his closest friends — including Philippe Sands, who has driven the Chagos case, and the attorney-general, Lord Hermer.
But there’s another reason to be sceptical, and it has to do with what the government is doing, rather than saying.
I wrote last week about the bin strikes in Birmingham, triggered by the council’s bankruptcy. That came about after it was landed with a bill of up to £760 million for giving bonuses to (mostly male) bin men and street cleaners but not to (mostly female) teaching assistants, office cleaners and catering staff.
That might seem like a commendable blow for equality. But the more you dig into the equal pay rules, the less that argument convinces.
That’s because the system is built on two ideas. First, you don’t have to prove individuals are being directly discriminated against. The clothing firm Next, for example, was punished for paying warehouse workers more than retail staff because those jobs were male and female-coded — even though it did not pay a single woman less than a man for doing the same job, and almost half of its warehouse workers were female.
Second, lawyers have constructed an incredibly elaborate apparatus to determine what constitutes work of equal value. In the recent verdict against Asda (on similar grounds to Next), the judges spent more than 300 pages going through every task workers were asked to perform, to determine the level of training required, the precise amount of physical and mental exertion, and so on. The same legal constraints have seen the NHS grade all staff according to an impossibly complicated formula that creates arbitrary equivalence between completely different roles.
What is missing from such systems, or at least drastically underweighted, is the most important thing of all: what the market will actually pay. For example, the evidence in the Next case was very clear that there is more demand for warehouse workers than retail staff, that pay for such roles is higher, and that the firm had begged staff in its stores to shift over. Likewise, there are pretty obvious reasons why Birmingham might have needed to incentivise bin men more than those doing a 9 to 5.
Rather than reflecting reality, the equal pay regime has become a charter for trade unions to milk employers. And I’ve explained it at such length because Labour is hugely expanding its scope.
The new Employment Rights Bill gives government the power to lower the threshold for union recognition in firms with more than 20 employees to as little as 2 per cent of the workforce. It gives unions the right to enter workplaces where they aren’t recognised, and forces firms to give union “equality representatives” time off to attend to those duties.
Meanwhile, under the Equality (Race and Disability) Bill, a new Equal Pay Regulatory and Enforcement Unit will be set up, “with the involvement of trade unions”. Equality laws will be embedded into public procurement. Ministers will also activate the long-dormant “socioeconomic duty” within the Equality Act, which means every single decision made by the state must be evaluated according to its impact on disadvantage. And all of this will be policed by legal case after legal case.
During the Tory leadership contest, Tom Tugendhat argued that Britain is increasingly subject not to the rule of law but the rule of lawyers. That’s been great for the legal profession — but not so much for the rest of us. And sadly, the lawyers around the cabinet table are set to make things very much worse.
